PUBLIC LANDS

Charges in Utah ATV ride spur debate over penalty -- and the broader application of justice

When 27-year-old environmental activist Tim DeChristopher disrupted a Bureau of Land Management auction in Utah in late 2008 to block the sale of public lands for oil and gas drilling, he was sentenced to two years in prison and assessed a $10,000 fine.

Now environmental activists, a former BLM official and a prominent Utah newspaper are calling for similar punishment for five men accused of planning and carrying out an illegal all-terrain vehicle ride through Recapture Canyon in southeast Utah to protest BLM's decision to close it to motorized recreation.

"There needs to be a consistent, steady hand" of justice, said Pat Shea, BLM director during the Clinton administration, who was DeChristopher's defense attorney in the BLM leasing case.

Federal prosecutors last week charged San Juan County Commissioner Phil Lyman, 50, and four other Utah men in federal court in Salt Lake City last week on two counts: conspiring to operate off-road vehicles on federal lands and driving those vehicles in Recapture on May 10 (E&ENews PM, Sept. 17).

Each of the misdemeanor counts carries a maximum of one year in jail and a $100,000 fine, according to the U.S. Attorney's Office in Salt Lake City.

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Lyman, who publicized the ride in the Deseret News and on Facebook, said last spring that he wanted to protest an overbearing BLM that had unjustly dithered on local proposals to reopen the riverine canyon to motorized recreation.

BLM closed the canyon in 2007 after two Utah men used picks, shovels and other tools to blaze an illegal 7-mile off-highway-vehicle trail through it, damaging ancient Anasazi and Pueblo ruins. The agency said there are 2,800 miles of other trails open to OHVs in southeast Utah.

For many conservationists, news of the charges against Lyman last Wednesday was cathartic.

Critics had hounded BLM for backing down in April in its roundup of cows owned by Nevada rancher Cliven Bundy. They had also criticized the U.S. Attorney's Office in Salt Lake City for failing to bring charges after hundreds of protesters in 2009 rode ATVs up Paria Canyon in a wilderness study area in southern Utah, in defiance of BLM's closure.

"It was a rewarding piece of news," said Shea.

Debate has shifted to the proper punishment if the men are convicted.

The accused will appear Oct. 17 before U.S. Magistrate Judge Evelyn Furse to enter their pleas.

If they are convicted, both defendants and prosecutors will suggest appropriate penalties to the court and a judge will make final call, said Melodie Rydalch, a spokeswoman for Utah acting U.S. Attorney Carlie Christensen.

Lyman did not respond to a call and email. Neither he nor the other defendants have identified attorneys to defend them in the case.

In a Facebook post May 10 that has since been edited, Lyman insists he stopped his ride at the end of a county maintenance road, where others continued on foot or horseback.

Other elected officials in southern and eastern Utah declined to comment or did not return emails or phone calls.

Conservationists who back BLM's closure of Recapture say a firm penalty for Lyman and his followers would send a signal to other would-be lawbreakers.

"The penalty has to deter people," Shea said, "not just defendants, but others who may be of similar minds."

Shea said Lyman should face a combination of a fine and some incarceration or community service, such as work helping to restore a national monument in Utah.

Lyman's offense differs from DeChristopher's in key respects, Shea said.

In contrast with DeChristopher, who acknowledged that he was breaking the law from the get-go, Lyman continues to proclaim his innocence, said Shea.

Rose Chilcoat, associate director for Durango, Colo.-based Great Old Broads for Wilderness, said Lyman's alleged offense, unlike DeChristopher's, was also premeditated and carried the real risk of damaging archaeological and ecological resources, whereas DeChristopher's harm was mainly economic. She said Recapture was "pretty torn up" in the days after the May 10 ride.

"If [DeChristopher] could spend two years in a federal prison, it seems like right now what we're seeing is not equitable," Chilcoat said. "We're hopeful this is the beginning in a series of charges."

Notably, no individuals have been charged with violating the Archaeological Resources Protection Act. A first-time felony offense under ARPA carries a $20,000 fine and two years in prison. BLM in spring said it planned to conduct an archaeological damage assessment, but no reports have been released to the public.

"We are hopeful that further investigation will allow the U.S. attorney to bring actions against all those that [flouted] BLM's order," said Liz Thomas, an attorney for the Southern Utah Wilderness Alliance. "In passing ARPA, Congress recognized the need to provide more effective law enforcement to protect the nation's archaeological resources."

The U.S. Attorney's Office said last week that "investigation in the case is ongoing," though it did not mention potential ARPA charges. About 50 people are reported to have ridden through Recapture last May, though it's unclear how many entered the closed area.

One individual who rode Recapture last May said the potential punishment does not fit the crime. Last week's charges were politically driven at the behest of environmental groups, the protester said.

"This is a road that serves the function of the county of San Juan," said the protester, who asked not to be named for fear of being implicated in the investigation. "Having a heavy hand and crushing and oppressing the people is just not the America I believe in."

The Salt Lake Tribune in an editorial on Thursday said Lyman and the other men deserve some time in jail, but it said such a sentence is probably unlikely.

"The fact that Lyman and company stand almost no chance of facing, say, the 21 months in federal prison that were meted out to environmental activist Tim DeChristopher stands as a monument to the unfairness of federal law enforcement," the paper wrote.

While jail time could deter future Recapture rides, it could also make Lyman and his fellow riders into martyrs in a state already deeply distrustful of the federal government.

Past federal raids in 1986 and 2009 in Blanding, Utah -- just a few miles west of Recapture -- helped inspire the May 10 ride.

Lyman last spring said the ride was initially planned for May 8 to commemorate the day of the 1986 federal raids, in which agents confiscated what were believed to be illegally looted American Indian artifacts.

The 2009 raid -- in which BLM and FBI agents arrested about two dozen people in hopes of disrupting what they believed to be a major black market for American Indian artifacts -- lives in infamy in Blanding. James Redd, a Blanding physician and respected community leader who was among those arrested, later committed suicide.

Redd's son, Jay Demar Redd, 40, who was among the five charged last week for riding Recapture, blamed his father's death on federal officers' aggressive interrogation, according to the Tribune. Jay Redd invoked his father in a speech to a Blanding crowd before the May 10 ride.

Federal prosecutors in their charges Wednesday said Redd's speech was "instructing and encouraging the group regarding the proposed ATV ride."

Lyman won't belong to the "great American tradition of civil disobedience" unless at least a few people spend time in jail, the Tribune editorial board said. "They would have to become real martyrs, not just taunters, in the hope that they would gain sympathy and supporters when more people see such a stark example of what they believe to be the feds' injustice," it wrote.

Lyman insists BLM is breaking the law by keeping Recapture indefinitely closed to motorized recreation, in spite of pleas from local residents to negotiate a suitable path through the canyon.

"When offences become the program of official government agencies, honest people are mandated by their morals, individually and communally, to seek corrective remedies," Lyman wrote in an Aug. 15 essay on civil disobedience that was published by the Libertas Institute, a conservative Utah think tank. "Short-term peace must, on occasion, be disrupted in order to protect the elements of sustained peace."

Notable leaders in civil disobedience say jail time can galvanize a movement.

Civil rights leader Martin Luther King Jr. in a 1960 speech to students in Durham, N.C., said it might "take this willingness to stay in jail to arouse the dozing conscience of our nation."

At his sentencing hearing in late July 2011, DeChristopher said prison time would not deter him or others from flouting federal laws in the name of justice.

"The people who are committed to fighting for a livable future will not be discouraged or intimidated by anything that happens here today," he said of the prison sentence federal prosecutors were seeking. "The reality is not that I lack respect for the law; it is that I have a greater respect for justice."

Twitter: @philipataylor | Email: ptaylor@eenews.net

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