Appellant's Opening Brief Lyman Case

Appellate Case: 16-4007
Document: 01019625877
Date Filed: 05/23/2016
Page: 1
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
Appellant's Opening Brief
UNITED STATES OF AMERICA,
Case No. 16-4007
Plaintiff-Appellee
v.
PHILLIP KAY LYMAN
Defendant-Appellant
On Appeal from the United States District Court

For the District of Utah, Central Division
The Honorable David Nuffer
D.C. No. 2:14-CR-00470-DN-1
Respectfully Submitted,
~
PbiiLyn;an tii1gpfOSe
..r-;9-2&/6
1401 North Blue Mountain Rd.

Blanding, UT 84511
Cell Phone - 435-459-2800
Email - phil@lymancpa.com
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TABLE OF CONTENTS:
I.
II.
INTRODUCTION
WRISDICTIONAL STATEMENT
A. BASIS FOR DISTRICT COURT'S AGENCY
B. BASIS FOR TENTH CIRCUIT COURT OF APPEALS JURISDICTION
C. FILING DATE AND TIMELINESS OF THIS APPEAL
D. APPEAL IS FROM A FINAL ORDER
III.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
IV.
STATEMENT OF THE CASE SETTING OUT THE FACTS
V.
VI.
VII.
SUMMARY OF THE ARGUMENT

THE ARGUMENT
CONCLUSION - STATEMENT OF RELIEF SOUGHT
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I- INTRODUCTION
The poet Robert Frost mused of taking one path instead of another and how that
decision "made all the difference." In life, differences do in fact make a difference.
The same should be true in federal court, yet criminal prosecutors often paint with
broad strokes, hoping, for the sake of stare decisis, to create the appearance of
sameness. In doing so they often miss or cover up the differences that do in fact make
all the difference.
Acting pro se in this matter, I ask the court in advance to forgive my lack of
experience in filing this type of legal brief. My arguments are factual, but I will do my
best to also incorporate appropriate legal case law.
I, Defendant-Appellant Phillip Kay Lyman, and four co-defendants were

charged on September 7, 2014 with one count of knowingly and willfully operating an
off-road vehicle in an area closed to such vehicles, in violation of 43 U.S.C. 1701
& 1733, and 43 C.F.R. 8341.1 and one count of conspiracy to do the same, in
violation of 18 U.S.C. 371. Charges were dropped on one defendant, Jay Redd, for
reasons that are not known to me. On March 10, 2015, I filed a Motion to Dismiss
Misdemeanor Information, which was denied by the district court. On April 22, 2015,
the district court granted the Government's Motion in Limine, limiting my ability to
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assert certain defenses. On May 1, 2015, after a jury trial, I and one co-defendant were
convicted on both counts, while the two other co-defendants were acquitted on both
counts.
Subsequently, I filed a Motion for a New Trial and a Motion for Judgment of
Acquittal, which were denied by the district court. On December 29, 2015, the district
court entered an order of judgment in my case, which included a sentence of three
years probation, 10 days incarceration, and an order to pay $95,955.61 for restitution.
II- JURISDICTIONAL STATEMENT

A. Basis for District Court's agency- Utah District Court United States v.
Phillip Kay Lyman 2:14-CR-00470-DN-1
B. Basis for lOth Circuit Court of Appeals Jurisdiction- United States Court
of Appeals for the Tenth Circuit - United States v. Lyman 16-4007
C. Filing date and timeliness of this appeal. This appeal was timely filed on
January 12,2016. The district court transmitted the record on appeal to
the clerk of the Tenth Circuit Court on March 11, 2016 and the initial
date for filing this appeal brief was set for April 20, 2016.
o 04/11/2016 Filed motion requesting access to sealed pleadings.
o 04/11/2016 Filed motion to extend time to file appellant's brief.
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o 04/12/2016 Order filed by Clerk of the Court granting extension of

time for filing appellant's brief until 05/20/2016
o 04/12/2016 Response filed by United States of America to
Appellant's Motion to access sealed pleadings.
o 04/22/2016 Order filed by the Court granting appellant's motion to
access sealed pleadings.
D. This appeal is from a final order a copy of which is part of the record.
III - STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether the recusal of District Court Judge, Robert Shelby, is indicative of a
collusive relationship that served to deny me and the other defendants of due
process under the 5th Amendment.
2. Whether the district court erred when it denied my Motion to Dismiss
misdemeanor Information.
3. Whether the district court erred when it denied my Motion for A New Trial.
4. Whether the district court erred when it granted the Government's request for
restitution and ordered me to pay restitution in the amount of$95,955.61.
5. Whether the district court erred when it prevented me from introducing
evidence in my defense that the road on which I travelled was not part of the
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area closed to off-road vehicle travel because the road was a county road with
an acknowledged R.S. 2477 right-of-way.
6. Whether I received ineffective assistance of counsel during pretrial and trial
proceedings.
IV- STATEMENT OF THE CASE -SETTING OUT THE. FACTS

The central element of the charges and conviction in this case is the actual
trespass. Crucial to understanding the elements which would or would not constitute
trespass is an understanding of the roads, trails, rights-of-way, and easements in the
canyon, as well as the Bureau of Land Management's restrictions, orders, rules, and
travel plans.
There are two very important considerations that make all the difference; No. 1.
- I reached a consensus with the BLM on how far down the road we could travel
without fear of prosecution for trespass or damage and, once that agreement was met,
I did nothing that could be considered contrary to that agreement; and No.2.- There
was no conspiracy against the United States or against the BLM to commit any sort of
crime or even the appearance of crime. My role was not as an organizer, but as a
County Commissioner and key player to whom others looked for direction. If there
were those who did not heed my instructions and broke laws, I do not know who they
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are or what laws they broke. I am aware of at least one person who came to the
"tailgate party" on the evening of May 9, 2014 and stated that he was there to
commandeer the event. He had his own sound system which he set up several hours in
advance of our announced time. He started talking as soon people showed up and
most did not know that he was acting on his own, until I finally went to his
microphone to set the record straight for those in attendance.
Others may have had an agenda, but I published mine and said that I would ride
down the county road the point where the pipeline leaves exits the canyon. No
off-road travel, no threat to artifacts, no violation of the law, no offence to the other
interest holders in the canyon.
As the prosecution's star witness, Josh Ewing, the executive director of
"Friends of Cedar Mesa," testified, "Mr. Lyman was true to his word. He stopped
where he said he was going to stop." The recorded phone call with State Bureau of
Land Management (BLM) director, Juan Palma, in combination with the documented
meetings, letters, and email communications between defendant and the Mr. Palma as
well as the local BLM authorities, are contrary to the allegation of a conspiracy. Mr.
Palma's agreement with the proposed plan, along with his official position as the top
BLM Government official in Utah, completely contradicts allegations of both
conspiracy and trespass. The fact that the Judge who presided over the criminal trial
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would not allow a reasonable cross examination of Mr. Palma while he was on the
stand despite the objections and repeated attempts by my attorney and the other public
defenders to do so is contrary to the truth fmding purpose of the trial. Taken in view of
the subsequent recusal of the presiding Judge after the conclusion of the trial, these
issues take on an entirely different light. Instead of the court's best attempt at due
process, there is an appearance of the court attempting to prevent due process.
The entire May 10,2014 event was planned with the involvement and
participation of local law enforcement. The Sheriff had planned to ride his ATV to the
same spot as we had agreed to with the BLM. The Highway Patrol was on hand to
escort people along Highway 191 from "Centennial Park," where a morning rally was
held, to the East side of Recapture Dam, where people drove, some in cars, some in
jeeps, and most on 4-Wheelers or side-by-sides, south down the road in the bottom of
the Canyon - a road that was legal and open and agreed with BLM that the use of
which would be "wonderful." Notifications were given to all parties who had permits
or holdings in the canyon, (grazing, mining, pipeline, etc.), and those people
participated in the protest along with the other citizens.
The prosecution's opening argument was based on the accusation that I "crossed
the line." This overt act of"crossing the line" set up the trespass and the conspiracy
allegations, yet it is abundantly clear that the prosecution and the Court is unfamiliar
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with the lay of the land and various access rights that exist in Recapture Canyon. It is
evident that, without ever having visited the canyon, they are taking their cues from
the BLM and it is also evident that the BLM is taking their cues from the attorneys at
Southern Utah Wilderness Alliance (SUWA), and The Wilderness Society (TWS).(see
appendix containing a selection of emails between BLM and the these two groups).
As one who has grown up on the edge of Recapture Canyon, when I speak of
the roads, I am not talking in the abstract but from personal knowledge. As one who
has participated in the years of "cooperating parties" meetings with the BLM, I
understand the process that was started and which has broken down for one reason or
another over the past ten years. As the elected County Commissioner, in whose district
Recapture Canyon sits, I have been intimately familiar with the County's involvement.
As a local CPA who for years prepared the audited Financial Statements for the San
Juan Water Conservancy District, I know of the contracts, the construction, the
meeting minutes, the costs, and the agreements related to the Recapture Reservoir and
pipeline project.
Shortest distance back to the park
(I will also add, that the protest was not civil disobedience. That is another false
label that was given by the special interest groups and which the BLM and the media
ran with despite all the evidence to the contrary. Our intentions were to shed light on
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the collusion that was taking place between the federal agencies and the special
interest groups. SUWA in particular had proven to be adversarial and, along with other
groups, had been effective in influencing BLM actions to the detriment of our
community. (See reference to The Wilderness Society's "BLM Action Center.")
Ironically the very pattern we were protesting was manifested to an even greater
degree during the course of the protest and the hearings which followed.)
I have studied the BLM's Resource Management Plans (RMPs) from 2008 and
before. I have participated in the gathering of road data for San Juan County and I am
familiar with the agreements between the BLM and San Juan County regarding that
road inventory; that it is still considered a "work-in-progress" and that roads are being
added and removed in the spirit of mutual accommodation. Or at least that was the
case prior to the most recent change in local BLM management in San Juan County,
Utah, which took place just a few months prior to the protest. Unfortunately the
protest caught the new BLM managers off-guard, and without the benefit of the
institutional knowledge that may have existed with their predecessors, they opted to
take the course of least resistance and follow the prodding of the special interest
groups.
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Had they looked at their own records, namely the San Juan County Water
Conservancy District Right OfWay application U-422412 1 they would have
distinguished between the Right-of-Way (ROW) granted for the reservoir and pipeline
versus the existing county road. In court they argued that the two were synonymous
(the same); they are not. In fact the likely reason that the Water Conservancy District
was able to obtain the ROW for the construction of the pipeline was because of the
existing road and the disturbance that accompanied it. There are other rights that exist
in Recapture Canyon, but the two that are most important to this case are the Title V
ROW and amendments granted by the BLM and the County road which has its
authority under R.S. 2477. This is not raising an R.S. 2477 defence, it is merely
distinguishing between the two valid rights.
Just prior to taking office in January 2011 as one of three elected county
commissioners, I learned of the criminal felony charges against Ken Brown and
Dustin F elstead2 for what the BLM called "illegal trail construction" resulting in the
destruction of federal property. The trail in question was located in Recapture
Canyon.(This section of "trail" is not the "road" on which the protest took place. In
fact the area of trail where, it was argued Mr. Brown and Mr. Felstead performed
1
2
BLM complete ROW Document U-42412 -In record

United States v Ken Brown
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"construction," is little known, and is not on the main trail system compromising the
proposed OHV trail. There is no indication or allegation that that section of "trail" was
even accessed by foot, horse, or OHV on the day of the protest.) For most of the
previous year I had been heavily involved in the consulting parties process initiated by
the BLM in an effort to resolve the emergency "travel restriction" they had placed on
an "area" of Recapture canyon.
Since the "travel restriction order" is the instrument which presumably "closed"
the "road" on which the protest took place, it is important to read the document. 3 It did
not close all the roads in Recapture Canyon, it closed an area to off-road travel. Since
the entire county was considered "open" to off-road cross-country motorized travel,
this was a significant distinction. The proliferation of roads caused by OHV's was the
alleged threat, not travel on the road and especially not travel on the county road that
was used regularly with heavy equipment for mining, cattle operations, pipeline
maintenance etc. I and the other defendants never argued whether or not the closures
mentioned in the travel restriction order were legal or illegal because we did not travel
those contested roads. Again, it is important to distinguish what is being argued and
what is not being argued. The fact that there is a well-established R.S. 2477
right-of-way in running ''up Recapture Wash"4 is NOT the basis for my contention
3
4
2007 Closure Order - in record

See 1980 Utah State Historic Preservation Officer Letter- in record
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that I did not trespass. The basis for my contention is that I did not drive on any road
which BLM considered closed to motorized travel. I stopped exactly where I had
agreed with BLM to stop and to the precise point on the road where the BLM said it
would be "wonderful" to "ride."
On February 27,2014 I held a town hall meeting as it had become my custom
to do once or twice a year since being elected as one of three Commissioners in San
Juan County, Utah. It was at this meeting that I and the Sheriff both announced our
intentions to run for a second four year term in office. There were a couple of other
elected officials in attendance and some prospective candidates for office. The purpose
of the town hall meeting was to listen to the concerns of the citizens of San Juan
County and try to answer their questions. I came to the meeting with flyer in hand and
did my best to touch on the topics of the County's General Fund Balance, reducing the
County's tax rate, accountability and transparency at the local government level,
healthcare, minerals, recreation, and tourism, and lastly I added this statement both in
the flyer and verbally:
"Finally, I would like to speak a word for those things which are not seen; faith,
family, peace, happiness, liberty. Certainly more important than schools, are the
wonderful teachers and exceptional kids who attend them. More important than roads
are the places they take us. More important than hospitals is the healing that takes
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place there. More important than politics are people. I have been blessed to live in
Blanding and to associate with the great people in this County. I have enjoyed serving
as Commissioner and would appreciate your vote. Please feel free to contact me with
any questions, concerns, or thoughts that you have for making San Juan County a
better place to BE."
Those who understand Blanding, Utah know that this small community has
been hammered by BLM law enforcement for a number of years now. As a county
with only 8% private land, the rest under Federal, State, or Tribal control, use of
public land for recreation, grazing, extraction, or just for quiet enjoyment is of utmost
importance to the citizens. During the Sheriff's time in the town hall meeting, one of
the citizens suggested that a Recapture protest be organized similar to the protest
which took place in 2011. 5 The Sheriff sympathized with the people and said he would
do everything in his power to ensure that the BLM obeyed the law and treated people
respectfully.
Then I took the floor. I told the group that general complaints against the BLM
were not productive, but that we needed to be more specific in outlining our
grievances. There was a general feeling from the people that their voices were not
being heard or acknowledged by the BLM or by our representatives in Washington
SPEAR Flyer- in record
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DC. In the government shutdown that had occurred the previous October, (October 1,
2013), businesses had been needlessly hurt and there was a feeling that those
responsible for the shutdown were vindictive in selectively applying the moratoriums.
We left the town hall meeting with a resolve to have a demonstration sometime early
in May.
The next day I called Don Hoftheinze, the newly appointed BLM manager of
the Monticello Field Office, to let him know of the meeting and of the interest in
holding a protest in Recapture Canyon.
Recapture Canyon lies directly East of Blanding Utah. It runs roughly 37 miles
from the headwaters of Montezuma Canyon on the North to the San Juan River on the
South. In 2007 the BLM closed a "area" in Recapture Canyon to off-road recreational
use. 6 The rest of the canyon was expressly not closed and the roads were being used
on a regular basis. My request to Mr. Hoffheinz was that the BLM make an effort to
wrap up the Environmental Assessment which the BLM had promised would be done
by March anyway. The County had signed a Programmatic agreement with the BLM
in November 2013 related to the "closed'' portion of the Canyon. It was my desire and
the desire of the community to use the demonstration as a catalyst to getting the
agreements in place before the event, and to make a service project out of it. I called
BLM Travel Restriction Order September 2007 -In record
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the State BLM Director, Juan Palma the following Monday and let him know that
while we wanted some indication of sincerity from the BLM in relation to the closed
area, we had no plans to break any laws. 7 Mr. Palma promised to get to work on the
project and see what he could make happen.
In the meantime, and behind the scenes, BLM was in tight communication with
attorneys from the Southern Utah Wilderness Alliance (SUWA) and the Wilderness
Society. What I believed was an honest exercise in mutual accommodation was in fact
a trick being played on San Juan County, orchestrated by special interest groups who
do not have the same interest in comity as do the Federal and County governments.
The email string shows that the BLM solicitors office was drafting letters for
the BLM and jointly planning for a highly publicized showdown in San Juan County,
despite the fact that we had expressed our desire for just the opposite. They
choreographed a plan which included staged interviews between the media and BLM
officials. The special interest groups suggested a false narrative that presented me as
"anti-government" and portrayed the recapture event as anarchy and criminally
motivated. Of course I had no idea of the double dealing and assumed that we were on
a constructive path toward a resolution that had been more than 7 years coming, and
which had been estimated to take less than six months on the part of the BLM.
Email between Juan Palma and Phil Lyman In Record
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It was not until April 28, 2014 that I received a letter from Lance Porter, the
BLM director for the Moab Area office. He spoke of criminal and civil charges, fines
and prosecution. All of which seemed out of line with the discussions I had had up
until that time. On the heels of the embarrassment in Bunkerville Nevada, I assumed
that the BLM was trying to squash any attempt at rebellion. I informed Mr. Porter that
we had no desire or intent to break the law or to embarrass the BLM, but that we
would go forward with our protest legally and lawfully as planned.
The BLM's decision to prosecute me was not based on the hundreds of emails
between State and Local BLM managers and attorneys from SUWA and the
Wilderness Society. It was in response to electronic petitions sent to their membership
touting a fabricated tale of lawlessness and asking their member to petition the
Department of Justice to press charges. It was a modem-day witch hunt. I suspect
there was even more correspondence with the BLM and Department of Interior in
Washington DC, but I have not been made privy to those communications.
The most disturbing revelation which followed my conviction was the
disclosure by our Judge, Robert Shelby of his close friendship with Steven Bloch, the
head attorney for SUWA. Since association with SUWA had been specifically
accepted as preclusion to Jury participation, it is even more strange that Judge Shelby
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felt the need to make a lengthy disclosure of his close association with Bloch and his
family in a civil case just three weeks following the conclusion of our criminal trial.
When I filed a motion to recuse, Judge Shelby stepped aside. This is not a
common occurrence in a federal criminal proceeding, especially after the trial. Yet
even in light of Judge Shelby's recusal and the prosecutions subsequent production of
maps indicating that they were aware of the distinction between the pipeline ROW and
the historic existence of the county road in Recapture Canyon, thus making bogus
their contention that the only access to the canyon was via the pipeline right-of-way;
still, even in this light, Judge David Nuffer seemed convinced that the trial had been
conducted impartially and denied my motion for a new trial citing, among other
things, the Jessop case. A case where a single individual drove his ATV on a known
closed road in assertion of an R.S. 2477 claim. The Jessop case and mine could not be
more different, yet in the eyes of the court, and the eyes of Judge Nuffer who had
taken the case days earlier, after the recusal of Judge Shelby and at least two other
federal judges, they were "the same"?
V- SUMMARY OF THE ARGUMENT
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1. The trial was tainted due to the conflict of interest that existed between the
Judge , Robert Shelby, and the head legal counsel for Southern Utah Wilderness
Alliance, Steven Bloch.
2. The district court erred when it denied my Motion to Dismiss misdemeanor
Information. 8
3. The district court erred when it denied my Motion for ANew Trial. 9
4. The district court erred when it granted the Government's request for restitution
and ordered me to pay restitution in the amount of$95,955.61. 10
5. The district court erred when it prevented me from introducing evidence in my
defense that the road on which I travelled was not part of the area closed to
off-road vehicle travel.
6. I received ineffective assistance of counsel during pretrial and trial proceedings.
VI- THE ARGUMENT

1. The Federal District Judge, Robert Shelby, who presided over our trial,
subsequently recused himself because of a conflict of interest. His recusal came
after the trial and my, and on co-defendant's, criminal convictions. Judge
Shelby's conflict was related to his friendship with Southern Utah Wilderness
8
9
Motion to dismiss misdemeanor infonnation

Motion for a new trial
10
Restitution Order
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Alliance lead legal counsel, Steven Bloch. This conflict was not disclosed at
any point during our trial even though association or membership with Southern
Utah Wilderness Alliance was listed as the first peremptory provision of the
defense in jury selection. 11 The reason for this preemption was because of the
blatant interference that SUWA had already had with the protest, the media
coverage, and because of their unscrupulous attempts to influence the BLM and
the Department of Justice. While SUWA was not the only special interest
mentioned, they were the first and the primary organization from whom we
wanted the proceeding of the trial to be free of influence. We had no reason to
suspect a conflict on the part of Judge Shelby himself, but there was ample
opportunity for him to make a disclosure of his close ties with SUWA's lead
counsel. It was three weeks later that he made this disclosure in a separate civil
case:
"JUDGE SHELBY: I just wanted to start with a disclosure, Steve Bloch on
behalf of SUWA, Steve Bloch and his wife Kara are friends of mine and have
been for a long, long time. I practiced with Kara at Snow Christensen starting in
1999. My wife and I have socialized with the two of them since that time, we
continue to socialize. My son is close friends with Steve's son, they play on the
same soccer team, are in the same school class. We have dinner, are couples
together and with other friends not infrequently.
I don't hear any cases in which Steve appears, he had not entered an appearance
and still has not, I don't think, in Kane County. I was unaware until this
weekend that Steve had entered appearances in any of the roads cases.
11
USA v Lyman- Jury Selection, pg 56 Lines 8-19
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I thought about it over the weekend, and my view is that I needed to make a
disclosure about that, but I don't recuse from any matters involving SUWA. I
don't think I know anyone else that works at SUWA. If I do, I don't know who
they are. And so long as Mr. Bloch's not involved in our case, I intend to remain
in the case, but I wanted to make that disclosure. " 12
Following the above disclosure, which came to my attention, my legal counsel
filed a motion to disqualify Judge Shelby. After several weeks he stepped down.
During the trial, there were many instances where Judge Shelby's rulings
seemed slanted, but I assumed that he was at least impartial. When he denied key
evidence, I was baffied but naive to the behind-the-scenes relationships that might be
influencing his actions. Our was a high profile case and Judge Shelby broke from
standard protocol, allowing the media to live "tweet" or message from the courtroom.
I do not know Steven Bloch, but I found his twitter account and saw that he had been
present in the courtroom for the trial and was live "tweeting" the entire time.
Also, during breaks, the prosecution, Lake Dishman and Jared Bennett, would
huddle with people from the gallery including, among others, U.S. Attorney General
John Huber, lead counsel for the Wilderness Society -Nada Culver, Steven Bloch,
others who were there from wilderness advocacy groups, and members of the media
12
Transcript of Status Conference BEFORE HONORABLE DAVID NUFFER, CLARK WADDOUPS,

AND ROBERT J. SHELBY, May 26, 2015, JOINTLY MANAGED R.S. 2477 ROAD CASES LITIGATION,
Case Nos. 2:10-CV-1073 and 2:11-CV-1045- page 7-8
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including Bryan Maffiy from the Salt Lake Tribune. It was a spectacle to witness, but
of course out of view of the judge or the jury.
To consider that Steven Bloch, for whom Judge Shelby has such fond regard
and who was consulting with the attorneys and live tweeting the proceedings, was
present in the courtroom and simultaneously publishing admonitions to the court for
harsher punishments is troubling. The court should be free of that sort of influence, or
should at least attempt to appear to be free of it. Had I not filed the motion to
disqualify Judge Shelby, I have no doubt that he would have stayed on through
sentencing.
After Judge Shelby, two other judges recused and Chief Judge David Nuffer
took the case and presided over restitution and sentencing. It was Judge Nuffer that
denied our motion for a new trial.
The conviction was tainted. The 5th Amendment to the Constitution states that
no person shall "be deprived of life, liberty, or property, without due process of law."
We were denied due process at every turn. It is ironic that the very thing we were
protesting between the BLM and SUWA would become a central theme in our
criminal prosecution as well.
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If a recusal is appropriate in a civil case, how much more appropriate it would

have been in our criminal case where incarceration is being discussed? Steve Bloch
was advocating for one year in prison and the stiffest of monetary fines allowed.
Every part of our trial is and was affected by this conflict. It is not an imagined
conflict but one that is real and relevant to the motions in Limine, the jury selection
and instructions, the denial of the key evidence that proved the BLM's consent with
our plans, the decision to not allow the jury to even have the BLM right-of-way
application upon which the prosecution built their entirely flawed trespass argument
-(Judge Shelby said the document was "too complex for the jury and would only
confuse them." It is included herewith. It is not complex, but rather, it is
straightforward and informative of the distinction between the pipeline right-of-way
granted by the BLM and the county road; two separate and distinct rights.
When Judge Shelby reprimanded my attorney Jared Stubbs for filing a motion,
it intimidated my attorney and weakened his resolve to argue aggressively. In normal
proceedings one would accept that sometimes you have a tough Judge. In fact I
defended Judge Shelby following my conviction saying that I believed he was a
thoughtful and honest judge. In light of his conflict of interest however, the I am
forced to at least contemplate that his disdainful demeanor toward my attorney was
motivated by a predisposition on his part, and influenced by Steven Bloch.
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From this paradigm, Judge Shelby's censure of my attorney on the morning of

the first day of trial is troubling. He said:
"Mr. Lyman's motion to exclude certain exhibits from the Government,
which in my view was at best haphazard and incomplete and at worst
misleading about what was disclosed by the United States and when and how. It
was selective in presenting a partial picture of the facts in a way that I think was
misleading to me at least until I 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 .. If this
were a civil case, I'll tell you I would consider awarding attorney's fees as a
sanction for filing that motion just days before trial. That motion is also denied
as untimely, and it's denied as being without merit. " 13
Following his censure of me and my attorney for a motion that was filed in
good faith and as early as possible given the Government's delayed delivery of
discovery documents, Judge Shelby went on to make the following statement:
"All right. There's a second issue raised, and I'll tell you, Mr. Stubbs, it's
unclear to me, in fact it seems contradictory to me the way that you argue this in
your motion, the issue about excluding argument and testimony about this being
an illegal ride. Insofar as what you mean by being an illegal ride, that the
closure was legal is a legal issue. I agree, it is purely a legal issue and it's been
decided by the Court. You raised it, we discussed it in the final pretrial
13
USA v Lyman Trial Transcript page 9
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conference, and I made a ruling. It is a legal closure. This road is closed by the
BLM legally and lawfully for purposes of this trial. The Tenth Circuit may
disagree with me, and you can take it up with them if you wish. That is not
an issue for trial. It's closed."
"If you meant that the illegality of the ride in terms of whether it was
criminal was the issue, then I agree with you completely. That is the entire
purpose of the trial. But this is where the adversarial process is helpful to us.
You think it was not criminal, the United States thinks it was and they've
charged it as a crime. This is no surprise to anyone in the court, in fact we read
the allegations or summary of them to the jury yesterday."
"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. But I wanted to be clear
about that issue."
"What we are not discussing in this trial, what we are not arguing in
this trial, what we're not inviting the jury to consider in this trial is
whether that was a lawful closure. It is and it was. That issue is decided for
trial. It's also a legal issue, as you pointed out, and would have no place
being considered by the jury in any eyent." (emphasis added).
The problem with this posturing on the morning of the trial is that it goes way
beyond the mark of the motion that was filed. My attorney had argued that I had not
trespassed nor conspired to trespass, yet the judge in his argument says, in essence "I
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have already determined that Mr. Lyman is guilty of trespass, we are not discussing
that point any longer." When he says "This road is closed by the BLM legally and
lawfully for purposes of this trial," he is making two critical errors, first that the
BLM closed the road - they did not. The BLM imposed a travel restriction in a small
area of Recapture Canyon. Second, that the road on which I rode was the "closed
road" to which he was referring. The BLM did not perform a road closure, they issued
a travel restriction for a small "area" of recapture canyon and restricted off-road
recreational use in that area. Other areas of the canyon remained open, and certainly
the roads which were not closed could not arbitrarily be ruled as closed by Judge
Shelby on the morning of the trial. His statement that we could "take it up with" the
tenth circuit was frustrating. We were brushed aside with a dismissive, almost
taunting, remedy. His suggestion petulantly ignores the huge cost imposed on a
defendant to follow the course of an appeal. The road on which the protest took place
is not closed. It enters an area that is closed to off-road travel, but the road itself is a
county road and it is traveled every day. It was recently graded in its entire length. Fill
dirt was taken from the area around that road. It has a 27" pipeline buried five feet
deep under much of the road. And the ROW that granted the pipeline specifically
forbade the construction of a maintenance road and instead required the Water
Conservancy District to use only the existing county road to access their pipeline. The
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BLM even refers to the road as constructed under repealed R.S. 2477. The road was
not the object of the travel restriction, it was travel off the road and much further
South in the canyon, that was identified as the threat. If Juan Palma had said to stop at
a different spot, we would have accommodated the BLM further and stopped there,
but what he said was:
"Whatever happened in the late '80s or the -- whenever all this stuff happened.
But I can make some change, you know. Nobody is going to get arrested and
nobody is going to do all that kind of stuff. We're not going to do that. .. And,
Phil, I just wanted to say that, regardless of what you all decide to do on the
1Oth -- and I hope it is as you've just described, you know, that you can have
your celebration and that you can, you know, ride or walk down into the
canyon. That would be wonderful. " 14
The jury was not allowed to hear the recorded phone call, and, according two
jurors that I spoke to after the trial, the jury was instructed, after they went into
deliberations, to disregard the written transcript of the call since the judge had
disallowed the recording to be played during the cross examination of Mr. Palma.
These things - the terse interaction with my attorney; the proclamation of guilt
as to the trespass leaving only criminality as a matter for the jury; the way that Judge
Shelby shut down my attorney during the cross examination of Mr. Palma; not
14
Juan Palma Transcript- corrected after the trial but before sentencing.-ln record
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allowing the jury to examine the right-of-way documents; all of these things take on a
different hugh when viewed in the light of Judge Shelby's relationship with Steven
Bloch and between their families.
I feel like I was forced to argue an R.S. 2477 matter when my actions had
nothing to do with R.S. 2477. Had I wanted to make an R.S. 2477 stand, I would have
done so on a contested road. The road on which I drove may have had an element of
controversy because it is in Recapture Canyon and there are "areas" in the canyon that
are closed to off-road use, but it was not contested. It was being used regularly and is
still used regularly and legally. It is maintained to that point where I turned around,
and it has had extensive archaeological clearances on that section as well. Had the
district court been interested in discovering the truth, it would easily have done so.
And that truth would have made all the difference.
The above discussion informs the other points of my appeal.

2. The district court erred when it denied my Motion to Dismiss misdemeanor
Information: I was charged with two misdemeanor counts; Count 1, under 18 U.S.C.
371, for CONSPIRACY TO DEFRAUD THE UNITED STATES/Conspiracy to
Operate Off-Road Vehicles on Public Lands Closed to Off-Road Vehicles; and count 2
under 43 U.S.C. 1701, 1733,43 C.P.R. 8341.1(c), and 18 U.S.C. 2 FEDERAL
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LAND POLICY AND MANAGEMENT/ Operation of Off-Road Vehicle on Public

Lands Closed to Off-Road Vehicles, for "knowingly and willfully" operating "an
off-road vehicle through land closed to off-road vehicles and administered by the
Bureau of Land Management," and for Aiding and Abetting others in the committing
the same crime.
A motion to dismiss misdemeanor information was filed by counsel on March
10, 2015 citing the government's failure to allege that the co-defendant acted
interdependently to commit a crime.
Having been charged with trespass, and having plead not guilty, the court
should have identified the road which they believed constituted a trespass. Instead the
simply charged a trespass and the judge ruled the "road closed" without identifying
which road was closed, and on which road the protest took place. BLM Law
Enforcement Agent in charge of investigations, said that he photographed upward of
150 OHVs, most with more than one rider, who all stopped at the end of the road. He
and the BLM claim that others went beyond that point. The BLM supposedly paid
$65,000 to a firm to assess damages beyond the end of the road, but they did not
evaluate the the road on which the protest itself took place, only the area south of that
road. 15 I was compelled to hired a reputable firm myself, ERO Resources out of
15
ADIA Damage Assessment report -In Record
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Denver Colorado, to go in and evaluate the damages claimed by the BLM. The result
of the assessment done by ERO resources 16 indicated that there was no damage done
to the "trail" south of the road, and the notion that damage was done to the road itself
was "spurious" on the part ofEDIA and the BLM. My motion to dismiss was made in
earnest, but was deemed without merit by the court when the court should have given
proper consideration of the claims.
3. The district court erred when it denied my Motion for ANew Trial. Chief District
Court Judge David Nuffer, had only recently taken the case. In his denial for a motion
for a new trial Judge Nuffer erroneously likened our defense to that proffered in
United States v Jessop, saying: "Mr. Jessop wanted to raise an RS 2477 defense. uAs
the basis for his defense, Mr. Jessop contended that the area where he traveled,
sometimes referred to as a right-of-way, was not federal but rather was reserved to the
State of Utah by historic statute R.S. 2477 and the Federal Land Policy and
Management Act (aFLPMA "). " This is the same argument that defendants are trying
to raise through the 1979 map."
Jessop's argument was that the Federal Government lacked authority to close a
road because ofR.S. 2477. While that may be a debate worth having, and apparently
the State of Utah believes it is, I did not raise that argument as a defence but only as a
16
ERO Resources Report and Invoices - In Record

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matter of uncontested fact in response to the United State's claim that the only access
into the canyon was via a pipeline right-of-way, which is simply not the case. The R.S.
2477 status of a closed section of road in Recapture Canyon was not the intent of the
May 10, 2014 protest which drew more than 500 participants from Utah, Arizona,
Nevada, New Mexico, Colorado, Idaho, as well as media from across the United
States. Unlike Jessop, my intent was not to assert a "right-of-way" but to participate in
a legal, community-level, grassroots expression of frustration related to the collision
taking place between the Bureau of Land Management and special interest groups,
namely Southern Utah Wilderness Alliance, and resulting in injury to our citizens.
The BLM contends that others went further on the morning of the protest, and
that because of a "conspiracy" of which I, due to my elected position as a County
Commissioner in San Juan County, Utah, was the principal player, I was responsible
for the actions of those individuals as well. The problem with that argument is that the
protestors stopped at the same place I stopped. They turned around and left the canyon
with me. The United States did not allege that I or my co-defendant Monte Wells went
past that point. The United States dropped charged against Jay Redd who clearly had
stopped at the same point. They did not press charges against what they claim were
another 150 or more people who also stopped at that point. The only two people who
were charged with going beyond that point were defendants Shane Marian and Trent
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Holiday, and they were both acquitted of trespass and conspiracy despite an aggressive
prosecution against them.
Certainly the BLM was aware of the planned protest because I informed them
of every aspect of the protest. Following my February 27, 2014 Town Hall Meeting
where the need for a protest was discussed at length, I called Don Hoffheinz, the BLM
Monticello Field Office Manager and we discussed at length, the planned protest and
how to make it productive. The hope had been that the BLM would meet their
promised completion date for the Environmental Assessment which was the final step
before issuing the the programmatic agreement which was to open the "trail" ("trail"
as opposed to the well maintained "road") which started where the well-maintained
road ended. These are not the dealing of conspirators, but they were my efforts as an
elected county commissioner to avoid a potentially volatile situation while still
allowing citizens to feel that they had been heard.
4. The district court erred when it granted the Government's request for restitution
and ordered me to pay restitution in the amount of$95,955.61: Judge Nuffer said,
"when you light a match, you are responsible for the fire," and ruled that I was
responsible for the cost of assessing the damages performed by the BLM. Here again,
the parties external to the BLM were posturing even in advance of the protest. The
BLM's contracting firm had been placed on notice. When the protestors did exactly as
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we had agreed to do, drove to a spot on the road that was not closed, turned around
and left the canyon, those who were not informed, and who were politically motivated
to make a crime out of a peaceful protest, prevailed upon the BLM who, instead of
making truth their standard, prosecuted innocent people, myself included. In any other
setting, the cost that the BLM incurred for a study which initially claimed more than
$200,000 in damages, and then when those damages were reduced to zero based on a
counter study, such an expenditure would be considered spurious, and then to claim
that I as the defendant should pay for their bogus study is fraudulent.
Judge Nuffer made a comment in his concluding remarks that illustrates his
assumptions, which would naturally be uninformed, upon which he was basing his
award of restitution. He said: "The map presented by defendant Wells showing the
proximity of the end of the canyon, the Brown's Canyon end, to the city of Blanding
further demonstrates the inevitability that riders would not choose to follow the longer
northern route to return back the way they came but would loop back through the
southern route of Brown's Canyon through the closed area. The objective of the
conspiracy was a protest ride in a closed area, and the conspiracy's objective was
accomplished."
Anyone who has driven down the county road in Recapture Canyon, to the
point where the pipeline leaves the canyon, knows that the Judge Nuffer's statement is
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illogical. At that point the road ceased to be maintained. The willows are overgrown.
The "trail" is in serious disrepair, and it would take at least three times longer to take
the trail rather than to turn around. Besides that, the people on the protest knew what I
had told them about the end of the protest route. If you look at the photos of the event,
the north end was crowded with vehicles and trailers. No one would have found it
easier to head south rather than to turn around, and to my knowledge there was no one
who went past the end of the pipeline. I was parked there to help people recognize that
this was the point to stop. Everyone who was party to "my" protest did exactly that. If
there was another conspiracy at work to piggy back on my legal protest, it was done
without my participation, without my knowledge, and without my agreement to it.
I do not believe the Government's assertion that 32 vehicles traveled past the
end of the pipeline. They have not produced convincing evidence that even one ATV
traveled past that point, and certainly cannot legitimately claim that it was part of my
plan to do so. In the beginning of the process, we were petitioning the BLM to open
up the trail, to do what they had promised to do; or to close the trai if that was their
decision, but that the temporary closure order which had expired more than 4 years
earlier was creating unnecessary ambiguity in the status of the trail. When the BLM
refused to take any action whatsoever to resolve the problem, we came to a solid
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agreement to stop on the County Road at the point where the pipeline exits the canyon
and the road ceases to be maintained.
5. The district court erred when it prevented me from introducing evidence in my

defense that the road on which I travelled was not closed to off-road vehicle travel: As
I have said earlier, my intention was not to prove an R.S. 2477 claim on the road in
Recapture Canyon. The road was not in question, nor was the travel restriction which
had been placed on a small "area" of Recapture Canyon in question. The travel
restriction may have been legal; the road on which we drove was an R.S. 2477 road;
those two facts are not in dispute, at least not by me and not at the time of the pretes.
Yet the United States claimed that the only legitimate access to the road was as a result
of a Title V ROW granted by the BLM in 1986 for the construction of a pipeline. The
BLM records completely contradict that assertion.
There are those who may argue that the BLM's travel restriction closed the R.S.
24 77 road, and there are others who may argue the illegality of such a closure, but
neither is relevant to my criminal trespass case and I should not be forced on the one
hand to prove an R.S. 2477 claim, while on the other hand being denied any reference
to R.S. 2477 as a basis for my defense. For judge Nuffer to assert that I lacked
standing to even identify the road in question as having authority under R.S. 2477
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presents an impossible situation. Being disallowed any defense whatsoever based on

the completely unrelated Jessop Case is one more reason for appeal. The road was not
closed - it is not closed. As Judge Shelby said, "The Tenth Circuit may disagree
with me, and you can take it up with them if you wish." As much as I would have
preferred to resolve this important distinction at the outset of the trial instead of on
appeal to the Tenth Circuit, Judge Shelby adamantly refused to even consider the
possibility that we were not guilty of trespass.
6. I received ineffective assistance of counsel during pretrial and trial proceedings. It
is true that my legal counsel, Jared Stubbs was new. In fact this was his first case as a
defense attorney in a federal court. The circumstances of how I came to hire him are
more of a concern than his lack of experience. I literally had the Federal Defenders
office forced on me at my initial appearance. I contested the appointment, and tried to
speak directly to magistrate Judge Evelyn Furse. I protested that I was not eligible
financially to receive a public defender, but she assigned the Federal Defenders office
to me anyway. After about two months of educating the federal defenders about my
case, U.S. Attorney, John Huber, began contesting the appointment. After two
unsuccessful attempts to have me stripped of the services of the Federal Defenders
office, I was summoned back to court where the Judge ordered the discontinuance of
the Federal Defender's office and for me to reimburse them for the cost of what they
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had done so far. This setback forced me to find an attorney, and work as quickly as
possible to bring them up to speed.
At the same time, the other three defendants had the same public defenders they
had been appointed at the outset. My attorney, Jared Stubbs, being inexperienced,
followed the lead of Nathan Crane, the public attorney for Co-defendant Monte Wells.
I have learned since the trial that public defenders are often under pressure to provide
a lower level of service than if they had been hired directly by the defendants. In the
end, it seemed that Nathan Crane was compelled to not argue key points, and Jared
Stubbs, was censured by the judge for attempting to do so.
Add to that the unfriendly atmosphere created by Judge Shelby, and in light of
his conflict of interest, and it was less than an ideal (or fair) situation for me and Mr.
Stubbs.
VII- CONCLUSION
This is a misdemeanor case; it does not deserve the sort of media coverage or
attention that it has received. The debacle at the Bundy Ranch just weeks before likely
created a heightened sense of peril which we could not have anticipated. On the one
hand the increased attention was desirable in that it brought more attention to the issue
which we felt compelled to protest in the first place. On the other hand this case took
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on a life of its own, swept away in negative media attacks. I naively assumed that once
in the courtroom, away from the din of the media, our case would be heard. It was not.
As U.S. Supreme Court Justice George Sutherland aptly stated, "The United
States Attorney is the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its obligation
to govern at all; and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. He may prosecute with earnestness and
vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means to
bring about a just one." 17
The government is required to paint a clear bright line. In our case they did the
opposite.
Prior to the imposition of the "Recapture Canyon Area Travel Restriction" the
area was "open to all types of recreation use, including motorized," and including
off-road, cross country motorized use. The proliferation of trials was not in the best
interest of the community and certainly not in the interest of those whose ancestors
had built the original historic road running up Recapture Wash connecting the
17
Berger v. United States 295 U.S. 78 (1935)
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communities of Bluff and Monticello. Closing the "area" to off-road use was an
acceptable option, to most people, including me. Closing the road, however, was not
desire, and was not the objetive of the travel restriction. The County Road is not
contested to the end of the pipeline. It is is misunderstood by local BLM, and they are
just now learning the provenance of that segment of road, but as they are educated on
the realities of the road, they are increasingly dismayed that they had been led so far
astray by special interest groups telling them of an alternate history which fits their
political agendas.
While I have no interest in knowing more about the underlying motivations than
my observations have led me to believe, it flies in the face of logic that I, as an elected
County Commissioner, or even as a citizen, am precluded from countering a false
trespass charge. The prosecution claims that not only did I trespass, but that I did it
knowing that there was no other right-of-way in the canyon than the pipeline
right-of-way. They made that argument knowing that the pipeline right-of-way was
not authorized for travel and that the only access for maintaining the pipeline was not
from the pipeline right-of-way but from the existing county road.
Tenth Circuit Federal Court of Appeals Judge, Michael McConnell said, in
referring to the conflicts that arise "over the respective rights of the putative easement
owner and the owner of servient estate, namely, the County and the federal
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government; these conflicts require both parties to act in a spirit of mutual

accommodation. And as might be expected of interdependent levels of government, in
the vast majority of cases, conflicts are resolved in just that way." (Emphasis added)
(SUWA v Kane County, 1990). With more than 3 million acres of public land in San
Juan County, which includes some of the most fragile and culturally significant land in
the United States, the dialogue over the management of that land must be driven by
something other than politics and business motivations, even if those business operate
under the guise of "protecting" wild landscapes. To further quote Judge McConnell,
"That is why it is so important that to ensure that interest groups, which do not share
the governments' interest in comity and cooperation should not be allowed to hijack
this process." It was exactly this "hijacking" that was the object of our local protest.
I request that that the Tenth Circuit will recognize the cloud created by by Judge
Shelby's recusal and overturn the conviction and acquit me and my previous
co-defendant Monte J. Wells. At the very least, this case should be remanded to
district court, preferably at a venue closer to San Juan County than Salt Lake City, for
a retrial.
Thank you for your patient reading of this brief. I hope to have an opportunity
to make an oral presentation at the Court's convenience.
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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
CERTIFICATE OF SERVICE
United States of America

Plaintiff-Appellee
Case No. 16-4007
vs.
Phillip Kay Lyman
Defendant-Appellant
I hereby certify that FOUR (4) copies of this APPELANT'S OPENING BRIEF
WAS SERVED ON 5/20/2016 via U.S. Mail.
To: Elisabeth A. Shumaker at Byron White United States Courthouse,
1823 Stout Street, Denver, Colorado 80257.
05/20/2016
Date
Is/ Phillip Kay Lyman

Signature
Copy mailed to:
United States Attorney's Office

185 South State Street, Suite 300
Salt Lake City, Utah 84111
For:
1.
John W. Huber, United States Attorney
2.
Jarred C. Bennett, Assistant U.S. Attorney
3.
Lake Dishman, Assistant U.S. Attorney
4.
Elizabethanne C. Stevens
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Appellant's Opening Brief Lyman Case

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Appellant's Opening Brief Lyman Case

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Appellate Case: 16-4007

Date Filed: 05/23/2016

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Case No. 16-4007

On Appeal from the United States District Court

1401 North Blue Mountain Rd.

Appellate Case: 16-4007

Date Filed: 05/23/2016

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

STATEMENT OF THE CASE SETTING OUT THE FACTS

SUMMARY OF THE ARGUMENT

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I, Defendant-Appellant Phillip Kay Lyman, and four co-defendants were

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II- JURISDICTIONAL STATEMENT

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o 04/12/2016 Order filed by Clerk of the Court granting extension of

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IV- STATEMENT OF THE CASE -SETTING OUT THE. FACTS

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BLM complete ROW Document U-42412 -In record

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2007 Closure Order - in record

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SPEAR Flyer- in record

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BLM Travel Restriction Order September 2007 -In record

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Email between Juan Palma and Phil Lyman In Record

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V- SUMMARY OF THE ARGUMENT

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VI- THE ARGUMENT

Motion to dismiss misdemeanor infonnation

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USA v Lyman- Jury Selection, pg 56 Lines 8-19

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Date Filed: 05/23/2016