Book of Court Memos

Case 2:14-cr-00470-DN Document 216 Filed 10/09/15 Page 1 of 22
JOHN W. HUBER, United States Attorney (#7226)

JARED C. BENNETT, Assistant United States Attorney (#9097)
LAKE DISHMAN, Assistant United States Attorney (Provisionally admitted; Licensed in VA)
185 South State Street, #300
Salt Lake City, Utah 84111
Telephone: (801) 524-5682
jared.bennett@usdoj.gov
Attorneys for the United States of America
IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH

CENTRAL DIVISION
UNITED STATES OF AMERICA,

Plaintiff,
Case No. 2:14CR470DN

MEMORANDUM IN OPPOSITION
TO MOTION FOR A NEW TRIAL
vs.
Chief Judge David Nuffer
PHILLIP KAY LYMAN and MONTE
JEROME WELLS;
Defendants.
The United States opposes the Motion for a New Trial that Defendants filed on August
25, 2015. ECF No. 185. As shown below, the 1979 Monticello W BLM map and its
accompanying documents, ECF No. 185, Exhibits A-C (collectively the 1979 map), that
Defendants claim the United States suppressed does not warrant a new trial because: (1) the United
States did not suppress evidence; (2) the 1979 map is not favorable to Defendants; and (3) the 1979
map is not material. Likewise, the August 5, 2015 letter of intent to sue that the State of Utah filed
with the Secretary of the Interior, ECF No. 185-4, Exhibit D (Letter of Intent), does not warrant
a new trial because it is not: (1) admissible evidence, (2) material, or (3) likely to result in acquittal.
Thus, this Court should deny Defendants motion.
FACTUAL BACKGROUND
Defendants conspired, organized, publicized, and, on May 10, 2014, carried out a protest
ride through an area of Recapture Canyon that the Bureau of Land Management (BLM) closed
to motorized use only nearly seven years earlier (hereinafter Closed Area). On September 17,
2014, the United States filed a Misdemeanor Information against Defendants and three others that
charged each with one count of conspiracy and one count of riding their motorized vehicles in an
area closed to such use. ECF No. 1. On September 26, October 8, October 14, 2014, and
February 4, 2015, Mr. Wells visited the BLM offices in Monticello and reviewed the files that
contained the 1979 map and all the documents in Exhibit C in Defendants Motion for a New Trial.
Exhibit A. On October 8, 2014, BLM emailed a copy of the 1979 map to Mr. Wells. Exhibit A.
Also, on February 4, 2015, BLM emailed to Mr. Wells, upon his request, pages 2-14 and 20-23 of
Exhibit C in Defendants Motion for a New Trial. Exhibit A.
On December 8, 2014, the United States filed a Superseding Misdemeanor Information
against Defendants and two others that charged them with the same two crimes charged in the
original Misdemeanor Information. ECF No. 41. Prior to trial, Defendants moved to dismiss the
Superseding Misdemeanor Information. ECF No. 72, 78. Among other things, Mr. Lyman
argued that Recapture Canyon was not legally closed and, therefore, was open to motorized use
during the ride on May 10, 2014. ECF No. 78 at 6-8. Judge Shelby rejected Defendants
motions and held that the Closed Area was lawfully closed to motorized use during Defendants
May 10, 2014 protest ride. ECF No. 91.
Prior to trial, the United States moved to exclude several defenses, including arguments
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that the Closed Area was illegally closed or that it was subject to a right-of-way under R.S. 2477.
ECF No. 101 at 3-5. However, the United States expressly recognized that Defendants could
argue to the jury that they had a subjective belief that the Closed Area was an R.S. 2477
right-of-way and, therefore, open to motorized use. ECF No. 101 at 4-5. Despite already
possessing the 1979 map, Mr. Wells responded that he would not challenge the legality of the
closure or assert R.S. 2477 as a defense at trial. ECF No. 115. Mr. Lyman never responded to
the United States motion and, therefore, waived any opposition thereto. Therefore, Judge Shelby
granted the United States motion in limine. ECF No. 131.
Shortly before trial, the United States and Defendants exchanged exhibit lists. Several of
Mr. Wellss exhibits were from BLMs files. Instead of filing separate exhibit lists, Defendants
agreed to share the exhibits that Mr. Wells provided. ECF No. 127; Exhibit B.
At trial, the United States presented six witnesses and numerous exhibits showing that
Defendants knowingly and willfully conspired to ride motorized vehicles through Recapture
Canyon and actually did so on May 10, 2014. Defendants sole defense witness was from the San
Juan County Water Conservancy District (the Water District) and testified that he gave Mr.
Lyman permission to use the Water Districts BLM-authorized right-of-way for the protest ride
even though the right-of-way was limited to operating and maintaining a water pipeline.1
Prior to instructing the jury, the parties met in conference to review the jury instructions.
Jury Instruction 30 provided:
BLM had granted the Water District a right-of-way to operate and maintain a pipeline under 43
U.S.C. 1761.
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INSTRUCTION NO. 30
LEGALITY OF THE TRAIL CLOSURE
As I told you earlier, you are the judges of the facts in this case. I am the
judge of the law. One of the issues of law I have already decided in this case
concerns the legality of the BLMs closure of certain trails in Recapture Canyon. I
have already ruled that the BLMs closure of sections of Recapture Canyon to
off-road vehicles was enacted on September 13, 2007 pursuant to 43 C.F.R.
8341.2 was lawful and was in effect on May 10, 2014.
ECF No. 147 at 31 of 40. No party objected to this instruction. After receiving the jury
instructions and deliberating, the jury convicted both Defendants of conspiracy and for riding
motorized vehicles in the Closed Area. ECF No. 149.
After conviction, Defendants obtained another copy of the 1979 map from the Water
District that Mr. Wells received before trial. Exhibit C at 6:36-6:47. Apparently, based in part
on the rediscovery of the 1979 map, the State of Utah issued the Letter of Intent to sue the United
States under the Quiet Title Act, 28 U.S.C. 2409a, (QTA) claiming that Recapture Canyon is
an R.S. 2477 right-of-way.
Defendants rediscovery of the 1979 map and the State of Utahs Letter of Intent have
spawned the instant Motion for a New Trial based on what Defendants call newly-discovered
evidence. However, as shown below, this Court should deny Defendants motion because neither
the 1979 map nor the Letter of Intent warrants a new trial.
//
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ARGUMENT
I.
THE 1979 MAP DOES NOT WARRANT A NEW TRIAL BECAUSE IT WAS NOT
SUPPRESSED EVIDENCE THAT WAS FAVORABLE TO THE DEFENSE OR
MATERIAL TO THIS ACTION.
Defendants rediscovery of the 1979 map does not warrant a new trial because the map is
not favorable evidence that the United States suppressed, and, in any event, it is not material.
Fed.R.Crim.P. 33(a) provides that a court may grant a new trial if the interest of justice so
requires. Newly discovered evidence may be grounds for a new trial. United States v. Redcorn,
528 F.3d 727, 744 (10th Cir. 2008) (citations and quotations omitted). Where, as here,
Defendants allege that the United States suppressed the allegedly new evidence (i.e., the 1979
map), Defendants must prove three elements to obtain a new trial: (1) the prosecution suppressed
evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was material. Id.
However, as shown below, Defendants cannot establish any of these elements. Therefore, this
Court should deny Defendants Motion for a New Trial.
A. The United States Did Not Suppress Evidence.
This Court should deny Defendants Motion for a New Trial because the United States
did not suppress evidence. [T]he prosecutor is not required to deliver his entire file to defense
counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive
the defendant of a fair trial. United States v. Bagley, 473 U.S. 667, 675 (1985). Thus, to meet
the first element for obtaining a new trial, Defendants must show that: (1) there is new evidence;
and (2) the United States suppressed it. As shown below, Defendants cannot establish either
requirement, which means that they cannot meet the first element for a new trial.
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1. Defendants cannot show that the 1979 map is evidence.

The 1979 map cannot be the basis for a new trial because it is not admissible evidence.
Implicit in a claim of newly discovered evidence is that there is new evidencethat is, material
that is admissible at trial. United States v. Hill, 737 F.3d 683, 687 (10th Cir. 2013) (emphasis in
original). At trial, irrelevant evidence is inadmissible. Fed.R.Evid. 401. The 1979 map is
irrelevant for two reasons: (1) the legal status of the Closed Area (i.e., whether it was closed)
was a legal issue that the jury could not decide at trial; and (2) the 1979 map is not relevant to show
Defendants subjective intent, which was an issue for the jury at trial.
First, the 1979 map is irrelevant because the legal status of Recapture Canyon was not an
issue for the jury at trial. It is axiomatic that legal questions are decided by a judge, not the jury.
See, e.g., United States v. Urfer, 287 F.3d 663, 665 (7th Cir. 2002) ([Q]uestions of law are for the
judge, not the jury, to decide.); see also Sparf v. United States, 156 U.S. 51, 101-106 (holding that
judge, not jury, determines questions of law in a criminal case). Whether a road is lawfully
closed is a question of law . . . . United States v. Glisson, 105 F.3d 660, 1996 WL 742329, *1
(7th Cir. 1996) (unpublished). Indeed, when the status of land is an element of a crime, those
questions are properly resolved by the court, not the jury. Cf. United States v. Roberts, 185 F.3d
1125, 1139 (10th Cir. 1999) (holding that the judge should decide whether a particular piece of
property constitutes Indian Country, whereas the jury decides whether the crime occurred on
that site previously determined to be Indian Country).
This should come as no surprise to Defendants because they clearly recognized that the
issue of whether Recapture Canyon was closed to motorized use was a question of law. For
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instance, before trial, Mr. Lyman unsuccessfully moved to dismiss this action by arguing that
Recapture Canyon was not closed to motorized use on May 10, 2014 because BLMs 2007
closure order expired prior to the illegal ride. ECF Nos. 78. Similarly, Defendants did not object
to the United States Motion in Limine, which sought to preclude them from arguing that BLMs
restrictions on motorized use in the Closed Area were illegal because of R.S. 2477. Finally,
Defendants did not object to the jury instruction stating that Recapture Canyon was lawfully
closed. Thus, because the legality of the closure of Recapture Canyon to motorized use was not
and should not have been a jury issue, showing the 1979 map to the jury would have invited it to
trespass into a question it could not decide. Therefore, the 1979 map could not have been
evidence at trial to challenge whether Recapture Canyon was lawfully closed to motorized use.
Second, the 1979 map is irrelevant to negate Defendants willful intent to conspire and
actually ride through the Closed Area. At trial, the jury had to determine whether Defendants
knowingly and willfully committed the two crimes charged. The term willfully, as used in
both counts, means that the defendant acted with knowledge that his conduct was unlawful.
United States v. Henderson, 243 F.3d 1168, 1172 (9th Cir. 2001) (addressing willfully in jury
instruction under 43 U.S.C. 1733(a)); United States v. Ware, 608 F.2d 400, 404 (10th Cir. 1979)
(stating that willfully means do an act with the wrongful purpose of doing something that the law
does not allow). Under this legal standard, Defendants could rely on a defense of a good faith
misunderstanding of what the law required. United States v. Hairston, 819 F.2d 971, 972 (10th
Cir. 1987). In the Tenth Circuit, evidence of Defendants misunderstanding must be subjective.
United States v. Phillips, 775 F.2d 262, 263-64 (10th Cir. 1985) (stating that subjective standard
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regarding willfulness is appropriate and remanding for new trial because jury instruction applied
an objective standard). Thus, as the United States Motion in Limine recognized, Defendants
could have argued at trial that they subjectively believed that the Closed Area was subject to an
R.S. 2477 right-of-way and, therefore, open to motorized use. However, Defendants could not
claim that the 1979 map helped them form such a subjective belief because neither had the map in
his possession prior to the illegal ride on May 10, 2014. Accordingly, the 1979 map would not
have been admissible to establish Defendants subjective belief. Given that the 1979 map is
neither relevant to show the legal status of the Closed Area nor Defendants subjective belief that it
was open, it is inadmissible at trial, which defeats Defendants motion on this basis alone.
2. The United States did not suppress the 1979 map.
In any event, the United States did not suppress the 1979 map. To show that evidence was
suppressed, Defendants must show that they did not have the evidence and could not have obtained
the evidence from another source through their own efforts. United States v. Kimoto, 588 F.3d
464, 492 (7th Cir. 2009) (stating that evidence is suppressed for Brady purposes when, among
other things, the evidence was not otherwise available to the defendant through the exercise of
reasonable diligence); United States v. Wooten, 689 F.3d 1134, 1142 (10th Cir. 2004) (Evidence
is not suppressed within the meaning of Brady if it is made known and available to the defense
prior to trial.); United States v. Lujan, 530 F.Supp.2d 1224, 1230 (D. N.M. 2008) (There is no
Brady violation where the defendant knew or should have known of the material, exculpatory
information or where the information was available to him from another source. (citing United
States v. Graham, 484 F.3d 413, 417 (6th Cir.2007)). Defendants cannot credibly argue that the
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United States suppressed the 1979 map because: (1) Defendants had the map before trial, and, in
any event, (2) they could have obtained it from the Water District.
First, BLM gave Mr. Wells access to the BLM files containing the 1979 map four different
times before trial. Exhibit A. In fact, BLM actually scanned and emailed the 1979 map to Mr.
Wells on October 8, 2014. Exhibit A. That Mr. Wells had this map is significant because only
Mr. Wells offered exhibits at trial, and Mr. Lyman joined in those exhibits. ECF No. 127, Exhibit
B. With the exception of one exhibit, Defendants joint exhibits were from the BLM case files
that Mr. Wells accessed before trial. Thus, the United States did not suppress the 1979 map.
Wooten, 689 F.3d at 1142 (Evidence is not suppressed within the meaning of Brady if it is made
known and available to the defense prior to trial.)
Second, the United States did not suppress the 1979 map because Defendants could have
obtained it from the Water District. Defendants affiant in their Motion for a New Trial, Michael
Noel, stated in a public meeting that the 1979 map was found in the Water Districts files. ECF
No. 185-3. Coincidentally, the only defense witness that Defendants called at trial was an
employee of the Water District. Because the 1979 map was available from another
sourceespecially from the source that employed Defendants only witnessthey cannot
credibly argue that the United States suppressed it. Kimoto, 588 F.3d at 492 (stating that evidence
is suppressed for Brady purposes when, among other things, the evidence was not otherwise
available to the defendant through the exercise of reasonable diligence); Lujan, 530 F.Supp.2d at
1230 (There is no Brady violation where the defendant knew or should have known of the
material, exculpatory information or where the information was available to him from another
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source. (citing United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007)). Therefore, this
Court should deny Defendants Motion for a New Trial because they cannot show that the United
States suppressed the 1979 map.
B. The 1979 Map is Not Favorable to Defendants.
In addition to not being suppressed evidence, this Court should deny Defendants motion
because the 1979 map is not favorable to Defendants. Evidence is favorable to the defense if it is
exculpatory or impeaching. Browning v. Trammell, 717 F.3d 1092, 1094 (10th Cir. 2013).
Because Defendants do not claim that the 1979 map tends to undermine the credibility of an
important government witness, they are, a fortiori, claiming that the 1979 map is exculpatory.
Id. To be exculpatory, Defendants must show that the evidence is expressly exculpatory,
because [t]o hold otherwise would impose an insuperable burden on the Government to
determine what facially non-exculpatory evidence might possibly be favorable to the accused by
inferential reasoning. United States v. Comosona, 848 F.2d 1110, 1115 (10th Cir. 1988). To be
expressly exculpatory, the 1979 map must obviously go to the heart of the defendants guilt or
innocence, United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984), and cannot be based on
speculation. United States v. Aleman, 548 F.3d 1158, 1164 (8th Cir. 2008) ([The defendant]
only speculates that interviews of [the undisclosed] individuals would have provided evidence
favorable to his defense, however, and mere speculation is not sufficient to sustain a Brady claim.
(citation, quotations, and ellipses omitted)). As shown below, the documents accompanying the
1979 map actually show no road at all through the Closed Area, much less an R.S. 2477
right-of-way. However, even if this Court were to set aside those documents and look only at the
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1979 map, finding that it shows an R.S. 2477 right-of-way requires too much speculation and
mental gymnastics to be favorable. Each argument is addressed below.
1. The documents accompanying the 1979 map show that no county road
traversed the Closed Area, much less an R.S. 2477 right-of-way.
The 1979 map, including its accompanying documents, are not expressly exculpatory
because they actually show that no road traverses the Closed Area. Because the 1979 map does
not explicitly identify any R.S. 2477 right-of-way, Defendants argument requires this Court to
read the 1979 map in conjunction with the other documents accompanying it. The documents
accompanying the 1979 map consist of two right-of-way applications that BLM approved: one to
build a reservoir and a dam north of the Closed Area, and another to reroute the highwayalso
north of the Closed Areato accommodate the newly constructed reservoir and dam. ECF No.
185-4 at 9 of 27. Within the document approving both right-of-way applications is a paragraph
that provides:
Locations of county roads in relation to the proposed projects is (sic) not shown
on the plats, since the roads were built per authority of repealed R.S. 2477. The
location of county roads in the area are shown on the portion of the topographic
map depicting the dam and reservoir site (in addenda).
In other words, county roads built under R.S. 2477 are not shown on BLMs plat maps, but they are
shown on a topographic map in the addenda that depict[s] the dam and reservoir site.
Given that the word depict means, [t]o represent, as in a picture or sculpture, Depict,
Websters II New College Dictionary (3d ed. 2005), the map in the addenda referred to above
should contain a picture of the dam and reservoir site.
In the addenda are two topographic maps: a map showing a close up of the proposed
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reservoir and dam (the Close Up Map), ECF No. 185-4 at 19 of 27, and the 1979 map (labeled
Monticello-W). ECF No. 185-4 at 15 of 27. As shown below, the Close Up Map meets the
requirements of the above-quoted paragraph; the 1979 map does not.
The Close Up Map depicts the dam and the reservoir site by providing a drawing of those
features. ECF No. 185-4 at 19 of 27. Conversely, the 1979 map has no drawing of the dam or
reservoir and merely marks their approximate location with a red circle in the middle of a large
area with a notation in the legend that reads Project Area. ECF No. 185-4 at 15 of 27. Also,
consistent with the above-quoted paragraph, the Close Up Map has two hand-written annotations
expressly identifying county roads. ECF No. 185-4 at 19 of 27. However, although the 1979
map shows many red lines, nothing on the map or its legend indicates whether the red lines are
county roads, which is what the above-quoted paragraph stated the relevant map would show.
Thus, the Close Up Map is the topographic map in the addenda depicting the dam and reservoir
site and showing the location of county roads.
This fact is devastating to Defendants favorability argument for two reasons. First,
Defendants cannot read the above-quoted paragraph in conjunction with the 1979 map for the
proposition that the red line near the Closed Area is an R.S. 2477 right-of-way. Second, the Close
Up Map, which shows county roads, does not show any road through the Closed Area. ECF No.
185-4 at 19 of 27. Therefore, when read in their proper light, neither the 1979 map itself nor the
documents accompanying it can be favorable to Defendants because they do not show a county
road traversing the Closed Area, much less an R.S. 2477 right-of-way.
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2. Reading the 1979 map in isolation does not make it favorable to

Defendants.
When read independently from its accompanying documents, the 1979 map is not
favorable. Although there appears to be a red line through the Closed Areaas well as through
many other areas of San Juan Countythe legend on the 1979 map does not explain what the red
lines mean. Even assuming that the red lines on the map are roads or trails, nothing indicates
whether they are federal, state, or county roads, or R.S. 2477 rights-of-way. Consequently,
Defendants assertion that the red line through the Closed Area on the 1979 map shows an R.S.
2477 right-of-way requires a speculative leap of faith, which is insufficient to be favorable.
Moreover, although hard to imagine that Defendants favorability argument could be any
bleaker, it is because expert analysis of the 1979 map reveals that the purported road shown near
the Closed Area on the 1979 map is attributable to the maps large scale. The 1979 maps scale is
accurate only within 500 feet to the east or west. Exhibit D. Moreover, comparing the red line
on the 1979 map with a GPS-based map of the actual trespass route (which is accurate within 40
feet) shows that the red line through the Closed Area on the 1979 map and the actual trespass route
are clearly not the same. Exhibit D. This is because the trespass route crossed Recapture Creek
several times whereas the red line in the 1979 map does not cross Recapture Creek at all. Exhibit
D. Therefore, whether read in conjunction with the right-of-way documents or in isolation, the
1979 map is not favorable to Defendants, and Defendants Motion for a New Trial fails.2
Although Defendants affiant, Representative Michael Noel, asserts that the red line in the 1979
map and the trespass route are the same, ECF No. 185-3, BLMs Chief Cadastral Surveyor for the
State of Utahwho is far more qualified than Mr. Noel to render such an opinionshows
otherwise. Exhibit D. Therefore, Mr. Noels opinion should be given minimal weight, if any.
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C. The 1979 Map is Not Material.

In addition to not being favorable, the 1979 map is not material because it cannot call into
question the jurys verdict. Evidence is material if there is a reasonable probability that, had
the evidence been disclosed, the result of the proceeding would have been different. Browning,
717 F.3d at 1094 (citation omitted). A reasonable probability does not mean that the defendant
would more likely than not have received a different verdict with the evidence, only that the
likelihood of a different result is great enough to undermine confidence in the outcome of the
trial. Id. (citation omitted). As shown below, the 1979 map does not undermine the jurys
verdict in the least because: (1) it could not have been presented to the jury, and, in any event,
(2) only government entities have standing to prove the existence of an R.S. 2477 right-of-way,
which no such entity did prior to Defendants crimes.3
First, the 1979 map could not undermine confidence in the verdict because it could not
have been presented to the jury at trial. As shown above in section I.A., the legal status of the
Closed Area is a question of law for the judge to determine, not the jury. Additionally, the 1979
map could not have been presented to negate Defendants intent at trial because neither Defendant
possessed the map before committing their crimes and, therefore, cannot claim that it contributed
While investigating the origin of the 1979 map, BLM discovered two additional maps from 1968
and 1975, which, on their face, appear to show a road near the Closed Area. Exhibit D.
Conversely, BLM also found a 1967 map, which did not show any road near the Closed Area.
Exhibit D. Expert analysis again provides that any road shown through the Closed Area on the
1968 and 1975 maps was not based on BLM source data, is attributable to the maps large scale,
and is clearly not the route that Defendants and their co-conspirators took on May 10, 2014.
Exhibit D. In any event, for the reasons stated above, these additional maps are also inadmissible
and unfavorable to Defendants. Also, for the reasons discussed below, these maps are
immaterial.
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to their subjective belief that the Closed Area was open to motorized use. Given that the 1979
map could not have been presented to the jury at trial, it cannot undermine confidence in the jurys
verdict. Therefore, the 1979 map is not material.
Second, the 1979 map is immaterial because only government entities have standing to
assert the existence of an R.S. 2477 right-of-way, and neither San Juan County nor the State of
Utah did so prior to Defendants crimes. Defendants appear to argue that proving the existence of
an R.S. 2477 right-of-way before Defendants committed their crimes is unnecessary because[a]n
R.S. 2477 right-of-way exists with no administrative formalities and without formal action by
public authorities. ECF No. 185 at 5 (emphasis omitted; quoting S. Utah Wilderness All. v.
Bureau of Land Mgmt., 425 F.3d 735, 741 (10th Cir. 2005) (hereinafter SUWA)). However,
Defendants argument ignores the rest of the Tenth Circuits opinion in SUWA. In SUWA, the
Tenth Circuit discussed at length the criteria governing recognition of a valid R.S. 2477
right-of-way and emphasized that [t]he presumption is in favor of the property owner; and the
burden of establishing public use for the required period of time is on those claiming it. Id. at
768. The SUWA court clearly stated that the burden to prove an R.S. 2477 right-of-way is on the
county asserting the claim. Id. Thus, as the land owner, the United States is presumed to control
and manage its land unless and until the county proves that it has a right-of-way across federal
property. See The Wilderness Socy v. Kane County, 581 F.3d 1198, 1220 (10th Cir. 2009) revd
on other grounds 632 F.3d 1162 (10th Cir. 2011) (en banc); Kane County v. Salazar, 562 F.3d
1077, 1087 (10th Cir. 2009). At no time has San Juan County or the State of Utah established in
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court that an R.S. 2477 right-of-way exists in the Closed Area.4

That no government entity has established that an R.S. 2477 right-of-way runs through the
Closed Area is significant here because only government entities have standing to assert an R.S.
2477 right-of-way; individuals do not. In fact, the Tenth Circuit has twice held that individuals
lack standing to assert an R.S. 2477 claim. Sw. Four Wheel Drive Assn v. Bureau of Land Mgmt.,
363 F.3d 1069, 1071 (10th Cir. 2004) (holding that private group lacked standing to assert an R.S.
2477 right-of-way because that right belongs exclusively to government entity); Kinscherff v.
United States, 586 F.2d 159, 160 (10th Cir. 1978) (per curiam) (holding that individual lacked
standing to assert an R.S. 2477 claim against the United States and right to assert a claim belongs
to government entity). This is because a claim to public roads belongs exclusively to state and
county governments. Sw. Four Wheel Drive Assn, 363 F.3d at 1071 (Kinscherff, 586 F.2d at
160). Consequently, only a government entity has the right to claim that an R.S. 2477
right-of-way exists in a particular location.
That individuals lack standing to assert the existence of an R.S. 2477 right-of-way applies
in criminal cases and does not prejudice Defendants due process rights. By definition, due
process entitles Defendants to assert only the rights that belong to them; it does not allow them to
assert the rights that belong to others. By illustration, if the United States were to illegally seize
evidence from a third party, then a defendant against whom the United States sought to use the
4
In fact, two years before Defendants crimes, San Juan County brought a QTA action against the
United States in which it claimed a total of 2,078 rights-of-way in San Juan County under R.S.
2477. San Juan County v. United States, 2:12CV467, ECF No. 2. San Juan County
subsequently amended its complaint to reduce its original R.S. 2477 claim to 1,703 rights-of-way.
Id. ECF No. 5. However, Recapture Canyon was never included in any of these claimed R.S.
2477 rights-of-way.
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seized evidence would lack standing to move to suppress on the basis that the United States
violated a third partys constitutional rights. See, e.g., Rakas v. Illinois, 439 U.S. 128, 134 (1978).
Similarly, criminal defendants cannot base their defense on rights that belong to a government
entity. United States v. Hensel, 699 F.2d 18, 30 (1st Cir. 1983) (stating that any violation of
international law invaded not his rights but rather the rights of Honduras); United States v.
Williams, 617 F.2d 1063, 1090 (5th Cir. 1980) (en banc) (stating that rights under international
common law must belong to sovereign nations, not to individuals, just as treaty rights are the rights
of the sovereign). Precluding Defendants from asserting an R.S. 2477 claimwhich they have
no standing to assertdoes not deprive them of due process. Accordingly, because no
government entity established the existence of an R.S. 2477 right-of-way in the Closed Area and
because Defendants lack standing to do so, the 1979 mapand any other map for that matteris
immaterial. Therefore, Defendants motion should be denied.5
Ironically, Defendants contention that due process requires this Court to allow them to have a
trial within a trial so that they can objectively establish the existence of an R.S. 2477 right-of-way
actually imposes a nearly unbearable legal burden upon Defendants. Instead of requiring
Defendants to bear the complex and heavy burden to affirmatively establish an R.S. 2477
right-of-way and its scope, the crimes charged allow Defendants to mount an R.S. 2477-based
defense merely by showing that they had a subjective belief that the Closed Area was an R.S. 2477
right-of-way that was open to motorized use. Tellingly, Defendants opted not to put on any
evidence that they subjectively believed the Closed Area to be open as an R.S. 2477 right-of-way.
They instead opted for a defense that they believed that they had permission to use the Water
Districts BLM-authorized right-of-way for the protest ride. However, the jury simply did not
believe Defendants. Defendants cannot seek a redo of trial to assert a defense that they opted
not to raise in the first place.
17
II.
THE STATE OF UTAHS LETTER OF INTENT TO SUE THE UNITED STATES

DOES NOT WARRANT A NEW TRIAL.
Albeit new, the Letter of Intent is not evidence that warrants a new trial. A motion for a
new trial based on newly discovered evidence is generally disfavored and should be granted only
with great caution. Redcorn, 528 F.3d at 743. Where, as here, Defendants seek a new trial
based on allegedly new evidence that the United States did not suppress, Defendants must prove
the following five elements:
(1) the evidence was discovered after trial; (2) the failure to learn of the evidence
was not caused by his own lack of diligence; (3) the new evidence is not merely
impeaching; (4) the new evidence is material to the principal issues involved; and
(5) the new evidence is of such a nature that in a new trial it would probably
produce an acquittal.
Id. As shown below, Defendants cannot meet any of these elements because the Letter of Intent is
not evidence that would be admissible at trial. In any event, even if this Court deems the Letter
of Intent to be evidence, it is not material, and Defendants cannot show that acquittal was
probable. Each reason for denying Defendants motion as to the Letter of Intent is discussed in
order below.
A. The Letter of Intent is Not Evidence.
The Letter of Intent is not evidence because it is inadmissible at trial. Implicit in a claim
of newly discovered evidence is that there is new evidencethat is, material that is admissible at
trial. Hill, 737 F.3d at 687. The Letter of Intent is irrelevant because the legal status of the
Closed Area is not a question that the jury could decide at trial. That issue was exclusively left to
the Court to decide. Moreover, like the 1979 map, Defendants could not claim to have relied on
the Letter of Intent to form a subjective belief as to whether the Closed Area was open to motorized
18
use at the time of their offenses because the State of Utah did not issue the Letter of Intent until
well after Defendants conviction in this case. On those two bases alone, the Letter of Intent is
inadmissible evidence and, therefore, insufficient to warrant a new trial.
B. The Letter of Intent is Not Material.
Aside from being inadmissible, the Letter of Intent is not material. The threat of a
potential civil lawsuit that challenges the law on which a conviction is based cannot be and has
never been deemed material for purposes of granting a new trial. Indeed, such a proposition is
absurd. For example, assume that an individual was convicted by a jury for possessing child
pornography. After trial, a civil liberties interest group sends a letter to the United States
Attorney General stating that the group may file a lawsuit within the next six months challenging
the constitutionality of the underlying child pornography statute. If the mere production of that
letter were sufficient to warrant a new trial, then no conviction in the United States would ever be
final, and courts would be in the business of retrying nearly everything, because anyone could
threaten to file a civil lawsuit somewhere in the United States challenging the validity of every
underlying law on which a conviction is based. Thus, the Letter of Intents notification of a
possible, future civil lawsuit, which, if successful, might establish an R.S. 2477 right-of-way of
sufficient scope to include Defendants conduct here cannot be material to the issues in this action.
Accordingly, Defendants motion fails.6
Merely establishing that an R.S. 2477 right-of-way exists in the Closed Area does not, by itself,
show that the Closed Area was either open to motorized vehicles or open in the areas
Defendants and their coconspirators rode. Like any right-of-way that is prescriptive in nature, the
use an R.S. 2477 right-of-way is strictly limited by its scope. See generally, SUWA, 425 F.3d at
746 ([T]he scope of an R.S. 2477 right of way is limited by the usage of the route as of the date of
19
C. Defendants Cannot Show That Inclusion of the Letter at Trial Makes Their
Acquittal Probable.
Finally, given the overwhelming amount of evidence against Defendants, they cannot
show that the Letter of Intent makes acquittal probable. Where, as here, Defendants do not allege
that the United States suppressed the Letter of Intent, Defendants must show that the Letter of
Intent would probably produce an acquittal. United States v. Kelly, 929 F.2d 582, 586 (10th
Cir. 1991). When determining whether acquittal is probable, this Court may look at all the other
evidence admitted against Defendants. See, e.g., United States v. Crabbe, 424 F. Appx 782, 788,
(10th Cir. June 2, 2011) (unpublished). Comparing the evidence admitted against Defendants
against the Letter of Intents unproven assertion that the Closed Area includes an R.S. 2477
right-of-way is woefully insufficient to result in probable acquittal.
Despite a post-conviction attempt to turn this case into an R.S. 2477 matter, Defendants
illegal ride was always about one thing: protesting BLMs policies. At a February 27, 2014 town
hall meeting, Mr. Lyman stated that the community needed to send a message to BLM. Trial
Exhibit 23; ECF No. 72-2 at 19 of 34. To send this message, Mr. Lyman and his constituents
resolved: we can talk to our congressmen, talk to our state legislature, or people right here have
the ability to go and do something, and we said, well, lets go ride Recapture. ECF No. 72-2 at
19 of 34. After the decision was made to illegally ride through Recapture Canyon, Defendants
the repeal of the statute.). Moreover, the United States may reasonably regulate an adjudicated
R.S. 2477 right-of-way, which may include prohibiting motorized use to protect against
depredations of federal property. Clouser v. Espy, 42 F.3d 1522, 1538 (9th Cir. 1994) (holding
that Forest Service could restrict motorized use to protect resources even if road was R.S. 2477
right-of-way). Thus, a letter threatening a possible, future lawsuit on R.S. 2477 grounds cannot
be material for purposes of a new trial.
20
requested that BLM take action so that the protest ride would not have to be an illegal
movement. Trial Exhibit 23. Over the next two-and-a-half months, Defendants spent a great
deal of effort promoting the upcoming illegal ride in the media and even changed the date to May
10, 2014, so that more people could come. Trial Exhibit 35A. Defendants did all of this
despite several warnings from BLM that Defendants illegal ride would result in civil and criminal
penalties. Trial Exhibits 24, 26. Mr. Lyman did this despite acknowledging that he was
breaking the law from a federal standpoint. Trial Exhibit 99A. Thus, the whole point of
Defendants protest was to show their disagreement with BLMs policies by riding motorized
vehicles in an area that they knew BLM had closed to such use.
Defendants cannot credibly argue that the Letter of Intent would so thoroughly undercut
the evidence produced at trial as to result in a probable acquittal. The Letter of Intent merely
provides the State of Utahs opinion that the Closed Area is subject to an R.S. 2477 right-of-way.
Thus, to the extent the Letter of Intent would have any probative value at all, it pales in comparison
to the significant amount of evidence showing that Defendants conspired to and actually rode their
motorized vehicles in an area that BLM had closed to such use. Accordingly, the Letter of Intent
could not result in probable acquittal, which dooms Defendants motion.
CONCLUSION
For the reasons shown above, Defendants Motion for a New Trial should be denied.
21
DATED this 9th day of October 2015.

JOHN W. HUBER
United States Attorney
/s/ Jared C. Bennett
JARED C. BENNETT
Assistant United States Attorney
/s/ Lake Dishman
LAKE DISHMAN
22
Case 2:14-cr-00470-DN Document 216-1 Filed 10/09/15 Page 1 of 1

Telephone: (801) 524-5682

CENTRAL DIVISION

Plaintiff,
vs.
Case No. 2:14CR470DN

EXHIBIT LIST
Honorable David Nuffer
PHILLIP KAY LYMAN & MONTE

JEROME WELLS;
Defendants.
Exhibit A: Declaration of Brian Quigley

Exhibit Q1 to Exhibit A: Monticello W Map (1979)
Exhibit Q2 to Exhibit A: Emails from Mr. Quigley to Mr. Wells
Exhibit B: Email between Mr. Lymans Counsel and AUSA Jared C. Bennett
Exhibit C: Audio CD of Utah Legislature Committee Meeting (filed conventionally)
Exhibit D: Declaration of Daniel W. Webb
Exhibit W1 to Exhibit D: Monticello W Map (1967)
Exhibit W2 to Exhibit D: Monticello W Map (1975)
Exhibit W3 to Exhibit D: BLM Map (1968)
Exhibit W4 to Exhibit D: Map of illegal ride from May 10, 2014
EXHIBIT A
Case 2:14-cr-00470-DN
Exhibit
Q1
Document 216-2 Filed 10/09/15 Page 4 of 8
9/3/2015
Exhibit Q2
DEPARTMENTOFTHEINTERIORMail-[1/2]AttachedImage
Case 2:14-cr-00470-DN
To:OTBPMaps<monte@otbpmaps.com>
----------Forwardedmessage---------From:<BLM_UT_Scan@blm.gov>
Date:2014-10-0812:45GMT-06:00
Subject:AttachedImage
To:bquigley@blm.gov
--
BrianQuigley
AssistantFieldOfficeManager
BureauofLandManagement
MonticelloFieldOffice
Monticello,Utah
(435)587-1503
0557_001.pdf
262K
Quigley,Brian<bquigley@blm.gov>
Wed,Oct8,2014at12:53PM
----------Forwardedmessage---------From:<BLM_UT_Scan@blm.gov>
Date:2014-10-0812:23GMT-06:00
Subject:[3/3]AttachedImage
To:bquigley@blm.gov
--
BrianQuigley
Monticello,Utah
(435)587-1503
0556_049.pdf
https://mail.google.com/mail/u/0/?ui=2&ik=185b3feab2&view=pt&cat=Monte&search=cat&th=148f0d115ded5a67&siml=148f0d115ded5a67&siml=148f0d17bc51
2/4
9/3/2015
DEPARTMENTOFTHEINTERIORMail-Scan#2
Case 2:14-cr-00470-DN
Scan#2
1message
Wed,Oct8,2014at11:38AM
--
BrianQuigley
Monticello,Utah
(435)587-1503
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2203K
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1/1
9/3/2015
DEPARTMENTOFTHEINTERIORMail-Scans10.8.14
Case 2:14-cr-00470-DN
Scans10.8.14
1message
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BrianQuigley
Monticello,Utah
(435)587-1503
10.8.14.pdf
2203K
https://mail.google.com/mail/u/0/?ui=2&ik=185b3feab2&view=pt&cat=Monte&search=cat&th=148f0d3972184a64&siml=148f0d3972184a64
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BrianQuigley
Monticello,Utah
(435)587-1503
0555_032(3).pdf
1083K
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1/1
EXHIBIT B
Page 1 of 1
Bennett, Jared (USAUT)
Re: Lyman's Jury instructions and Voir Dire
From: Jared Stubbs [jstubbs@fslaw.com]
Bennett, Jared (USAUT)
To:
Date: Fri, Apr 17, 2015 7:43 PM ET
I am joining Wells in his exhibits.
Sent using CloudMagic
On Fri, Apr 17, 2015 at 5:25 PM, Bennett, Jared (USAUT) <Jared.Bennett@usdoj.gov> wrote:
If you can email the exhibit list and exhibits, that would be great. If not, please FedEx them on Monday.
Cheers,
Jared C. Bennett
Civil Division Chief
185 South State Street, Ste. 300
Salt Lake City, UT 84111
Tel. (801) 3253259
Fax (801) 3253340
From: Jared Stubbs [mailto:jstubbs@fslaw.com]

Sent: Friday, April 17, 2015 2:37 PM
To: Bennett, Jared (USAUT)
Cc: Nathan A. Crane; garrett.law801@gmail.com; sharon@prestonbrar.com; Dishman, Lake (USAUT)
Subject: Lyman's Jury instructions and Voir Dire
Counsel,
I have attached Mr. Lymans proposed voir dire and jury instructions. Please contact me with any questions or concerns.
Sincerely,
Jared Stubbs
http://usaproofpointsearch.usa.doj.gov/Web.UI/ArchiveSearch/ArchivePreviewer.aspx?DI...
10/1/2015
EXHIBIT C
Audio CD Filed Conventionally
EXHIBIT D
Exhibit W1
1:250,000
Exhibit W2
1:250,000
Exhibit W3
Exhibit W4Case 2:14-cr-00470-DN

"
)
)
"
"
)
2771
191
238
2711
)
"
281
"
)
2551
)
"
282
)
"
206
)
"
219
0.125
0.25
1:24,000
0.5
)
"
219
0.75
Miles
StateHighways
ATV_Motorcycle
ClassBRoads
Illegal Ride Route
ClassDRoads
Recapture Closure
Bureau of Land Management (BLM)

Private
State
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Plaintiff,
MEMORANDUM DECISION AND

ORDER DENYING MOTION FOR A
NEW TRIAL
v.
PHILIP KAY LYMAN AND
MONTE JEROME WELLS,
Case No. 2:14-cr-00470-DN

District Judge David Nuffer
Defendants.
Defendant Philip Kay Lyman has filed a Motion 1 for a New Trial (Motion) pursuant to
Rule 33 of the Federal Rules of Criminal Procedure. Defendant Monte Jerome Wells joined
Mr. Lymans Motion on August 26, 2015. 2 After carefully reviewing the parties filings and
relevant legal and statutory authorities, the Motion is DENIED for the reasons set forth below.
BACKGROUND
On May 10, 2014, Defendants and others rode through an area of Recapture Canyon
located in San Juan County, Utah. The Bureau of Land Management (BLM) had closed that
area of Recapture Canyon to motorized use sometime in 2007 (Closed Area). The May 10,
2014 ride led to charges against the Defendants and two other individuals.
On December 5, 2014, the United States of America (Government) filed a Superseding
Misdemeanor Information charging Mr. Lyman, Mr. Wells, and two other individuals with
violating 43 U.S.C. 1701, 1733 and 43 C.F.R. 8341.1 by knowingly and willfully operating
Docket no. 185, filed August 25, 2015.
See Docket Text Order, docket no. 188, filed August 26, 2015.
an off-road vehicle in an area closed to such vehicles. 3 These same individuals were also charged
with participating in a conspiracy with others to engage in the operation of off-road vehicles in
an area closed to such vehicles, in violation of 18 U.S.C. 371. 4 On May 1, 2015, the jury found
Mr. Lyman and Mr. Wells guilty on both counts. 5
Defendants allege that new evidence was discovered after their conviction which the
Government inadvertently 6 failed to disclose. The allegedly undisclosed evidence is a 1979
Map 7 which was stored in the BLM files. 8 Defendants argue that the 1979 Map shows that the
road on which Mr. Lyman and others traveled on May 10, 2014 was a public highway, an R.S.
2477 right-of-way[,] and therefore not closed to off-road vehicles. 9
Defendants also point out that on August 5, 2015, the State of Utah notified the United
States Department of the Interior of its intent to sue (States Intent to Sue) to quiet title to the
Recapture Canyon R.S. 2477 right-of-way. That is, the State has taken the position that an R.S.
2477 right-of-way exists and has existed since at least 1976 on the Recapture Canyon Road.
Defendants allege that this is the same road traveled by Defendants in the present case.
Defendants request for a new trial is based on the discovery of the 1979 Map and on the States
Intent to Sue.
Superseding Misdemeanor Information, docket no. 41, filed December 8, 2014.
Id.
Verdict, docket no. 149, filed May 1, 2015.
Motion at 4.
Id. at 2.
Defendants point out that there were other documents associated with the 1979 Map that were also not produced
during discovery. See Motion at 3 (a 1981 document granting the San Juan County Water Conservancy District a
right-of-way); see also Reply Memorandum in Support of Motion for a New Trial at 2 (Reply), docket no. 225,
filed October 16, 2015 (a 1975 version of the 1979 Map). Because these other documents do not change the analysis
and conclusion below, only the 1979 Map will be discussed.
9
Motion at 3.
DISCUSSION
A. There is no Brady violation because the evidence is inadmissible and therefore not
material
Defendants argue that they are entitled to a new trial based on the Governments alleged
failure to disclose exculpatory informationthe 1979 Mapas required by Brady v.
Maryland. 10 A defendant who seeks a new trial under Rule 33 based on an alleged Brady
violation must show that (1) the prosecution suppressed evidence, (2) the evidence was
favorable to the defendant, and (3) the evidence was material. 11
Defendants assume that the 1979 Map is evidence that would have been admissible at
trial, and instead focus their arguments on the suppression of the 1979 Map by the
Government. 12 But the Government argues that the 1979 Map is not admissible evidence and
therefore a new trial should not be ordered. 13 In order to obtain a new trial on the basis of newly
discovered evidence, that evidence must be admissible in a new trial. 14
The 1979 Map is not admissible in a new trial because Defendants do not have standing
to challenge the legality of the BLMs decision to close the area in question by asserting an R.S.
2477 right-of-way defense. Whether the area of Recapture Canyon Defendants traveled was
legally closed during the ride on May 10, 2014 was brought before Judge Shelby in a motion to
10
373 U.S. 83 (1963).
11
United States v. Velarde, 485 F.3d 553 (10th Cir. 2007) (quoting United states v. Quintanilla, 193 F.3d 1139,
1149 & n. 10 (10th Cir. 1999)).
12
Defendants argue that [b]oth the 1975 and 1979 Monticello W Maps show a road, denoted by a red dashed line,
running through Recapture Canyon. The red dashed line indicates that this road is a public highway or travel way.
Reply at 5. The Government maintains that [e]ven assuming that the red lines on the map are roads or trails,
nothing indicates whether they are federal, state, or county roads, or R.S. 2477 rights-of-way. Memorandum in
Opposition to Motion for a New Trial at 13 (Opposition), docket no. 216, filed October 9, 2015.
13
Opposition at 6.
14
See e.g. United States v. Hill, 737 F.3d 683, 687 (10th Cir. 2013) cert. denied, 134 S. Ct. 1905, 188 L. Ed. 2d 934
(2014) (Implicit in a claim of newly discovered evidence is that there is new evidencethat is, material that is
admissible at trial.).
dismiss filed by Mr. Lyman. 15 Judge Shelby rejected Mr. Lymans motion and held that the
Closed Area was lawfully closed to motorized use during the May 10, 2014 ride. 16 The
Government, therefore, proved the closed road element of the offense. The legality of the trial
closure was later confirmed in jury instruction no. 30, which received no objection from the
parties. That instruction reads:
As I told you earlier, you are the judges of the facts in this case. I am the judge of
the law. One of the issues of law I have already decided in this case concerns the
legality of the BLMs closure of certain trails in Recapture Canyon. I have already
ruled that the BLMs closure of sections of Recapture Canyon to off-road vehicles
was enacted on September 13, 2007 pursuant to 43 C.F.R. 8341.2 was lawful
and was in effect on May 10, 2014. 17
On April 10, 2015, the Government filed a motion in limine to preclude Defendants from
presenting any evidence or argument that the closed road in Recapture Canyon is a right of way
under R.S. 2477[.]18 The Government argued that Defendants should not be able to put forth
evidence purporting to establish that the road that BLM closed in Recapture Canyon is an R.S.
2477 right of way because Defendants lack standing to do so. 19 Mr. Wells filed a response to
the Governments motion in limine, in which he stated that he was not planning on pursuing an
R.S. 2477 right-of-way defense at trial. 20 Mr. Lyman did not file a response to the motion in
limine. 21 Judge Shelby granted the Governments motion in limine on April 22, 2015. 22
15
Motion to Dismiss Misdemeanor Information, docket no. 78, filed March 10, 2015.
16
See April 1, 2015 Transcript at 4144, docket no. 202, filed September 17, 2015.
17
Jury Instructions at 31, docket no. 147, filed May 1, 2015.
18
Motion in Limine at 1, docket no. 101, filed April 10, 2015.
19
Id. at 4.
20
Response to Governments Motion in Limine, docket no. 115, filed April 17, 2015.
21
See April 22, 2015 Transcript at 14, docket no. 203, filed September 17, 2015.
22
See Minute Entry, docket no. 131, filed April 22, 2015.
Defendants now argue that they would have opposed the Governments motion in limine
had the 1979 Map been disclosed. 23 Whether the Defendants would have opposed the
Governments motion in limine is irrelevant because it does not change the fact that, as a matter
of law, Defendants do not have standing to raise an unadjudicated R.S. 2477 defense.
Judge Tena Campbell addressed the issue of whether a criminal defendant has standing to
raise an unadjudicated R.S. 2477 defense in United States v. Jessop. 24 Mr. Jessop was charged
with operating an off-road vehicle on federal public land closed to off-road vehicle travel, in
violation of 43 C.F.R. 8341.1(c)the same statute violated by Defendants. 25 The non-jury
criminal matter was brought before a United States Magistrate Judge for resolution. 26 Mr.
Jessop wanted to raise an R.S. 2477 defense. As 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 (FLPMA). 27 This is the same argument that Defendants are trying to
raise through the 1979 Map.
The magistrate judge found that Mr. Jessop did not have standing to challenge the
legality of the BLMs closure of the right-of-way at issue in that case, and granted the
governments motion in limine to exclude an R.S. 2477 defense as a matter of law. 28 The
magistrate judge stated, among other things, that Mr. Jessop lacks standing to assert, and this
court lacks jurisdiction to adjudicate the R.S. 2477 right-of-way Defendant believes exists. . . .
23
Motion at 9.
24
2010 WL 5395091, Nos. 2:08-CR-245-TC, 2:06-CR-553-RTB (D. Utah, Dec. 27. 2010).
25
Id. at *1.
26
Id.
27
Id.
28
Id.
[O]nly a governmental entity may seek a court, through the exclusive waiver of sovereign
immunity in the Quite Title Act (28 U.S.C. 2409a) in a properly filed lawsuit, to adjudicate a
claimed R.S. 2477 right-of-way. 29
Mr. Jessop appealed his conviction to Judge Tena Campbell, claiming that he, as a
criminal defendant, did have standing to assert the defense, and further, that the United States
failed to establish a prima facie case against him because it did not prove that the area was in fact
federal land properly closed to off-road vehicles. 30 Judge Campbell affirmed the magistrate
judges ruling. Judge Campbell held that Mr. Jessops R.S. 2477 defense is not permissible as a
matter of law. 31 In so holding, Judge Campbell explained:
[Mr. Jessop] misstates what the BLM must prove in his case. Here, BLM
presented uncontested evidence that it went through the proper procedures to
close the area to [off road vehicle] use. Mr. Jessop does not challenge those facts.
Nor does he suggest that any court has issued a finding under the Quiet Title Act
regarding R.S. 2477 status of the Broad Hollow area. Instead, he generally
challenges the BLMs authority to close the area. His argument fails because it
has already been established as a matter of law that BLM has the authority to
close the area. Specifically, a legal presumption in favor of the federal land
manager cannot be overcome absent completion of a valid Quiet Title Act lawsuit
resulting in the judicial finding that an R.S. 2477 right-of-way exists. 32
Similar to Jessop, Defendants in the present case argue that they were traveling on an
existing right-of-way over federal land granted by an R.S. 2477. They contend that the 1979 Map
reveals the existence of an R.S. 2477 right-of-way and therefore negates an essential element of
the charged offensewhether the area they traveled was closed. They do not contend that there
has been any adjudication of an R.S. 2477 right-of-way.
29
Id.
30
Id. at *2; Judge Campbell reviewed the magistrate judges decision under Federal Rule of Criminal Procedure
58(g)(2)(b).
31
Id. at *3.
32
Id.
Defendants argue that an R.S. 2477 right-of-way exists with no administrative

formalities and without formal action by public authorities. 33 Defendants are correct that
[a]cceptance of an R.S. 2477 right of way in Utah . . . [simply] requires continuous public use
for a period of ten years. 34 For unadjudicated R.S. 2477 claims, however, determining when a
highway is deemed to be dedicated to the use of the public, [t]he presumption is in favor of the
property owner [the United States]; and the burden of establishing public use for the required
period of time is on those claiming it. 35
The Quiet Title Act provides the exclusive means by which a claimed right in federal
property may be adjudicated. 36 Because an alleged right-of-way under R.S. 2477 is a property
right[] ostensibly vested in the Counties by operation of the statute, . . . disputes concerning
property rights on federal land must be brought into federal court pursuant to the Quiet Title
Act[.] 37 This is no less true where a plaintiff alleges that the existence of an R.S. 2477 right-ofway invalidates an agencys decision to close or limit the use of a road. 38 Thus, a claimed R.S.
2477 right-of-way may only be adjudicated with a Quiet Title Act lawsuit. And until such time
an R.S. 2477 claim has been adjudicated in a Quiet Title Act lawsuit between governmental
entities, a presumption in favor of the Government applies. 39
33
Motion at 5 (quoting Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735, 768 (10th
Cir. 2005) ([T]he establishment of R.S. 2477 rights of way require[] no administrative formalities: no entry, no
application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of
the states or localities in whom the right [is] vested.)).
34
Southern Utah Wilderness Alliance, 425 F.3d at 769, n. 19, 771.
35
Id. at 768 (quoting Leo M. Bertagnole, Inc. v. Pine Meadow Ranches, 639 P.2d 211, 213 (Utah 1981)).
36
See 28 U.S.C.A. 2409a; see also Block v. North Dakota, 461 U.S. 273, 286 (1983); Southwest Four Wheel Drive
Assn v. Bureau of Land Management, 363 F.3d 1069, 1071 (10th Cir. 2004); Rosette, Inc. v. United States, 141
F.3d 1394, 139697 (10th Cir. 1998).
37
Kane County v. Kempthorne, 495 F.Supp.2d 1143, 1159 (D. Utah 2007).
38
Id.
39
See 28 U.S.C. 2409a(b) (providing that the United States shall not be disturbed in possession or control of any
real property involved in any action under this section pending a final judgment or decree).
Defendants contend that Jessop did not address the constitutional issue raised in the
present Motion. They argue that [i]n the civil context, there is no issue with requiring a dispute
over an R.S. 2477 right-of-way to be resolved through a Quiet Title lawsuit between
governmental entities. However, applying that rule in a criminal case to preclude a defense
creates a constitutional issue of due process. 40 According to Defendants, precluding this
evidence not only improperly relieves the Government from having to prove one of the essential
elements of its case, but also creates an irrebuttable presumption that this element, i.e., that the
BLM had the authority to close the right-of-way to off-road vehicles, has been met. 41
Defendants further argue that it is not necessary to litigate a Quiet Title action in a criminal case
in order to permit a defendant to raise an R.S. 2477 defense. . . . For example, a not guilty
verdict based, in whole or in part, on an R.S. 2477 defense does not resolve any issue against the
government. It merely reflects that a jury had a reasonable doubt whether an R.S. 2477 right-ofway existed over the area in question. 42
Defendants due process violation argument is incorrect. FLPMA imposes no specific
requirement on the BLM to identify and determine all R.S. 2477 rights-of-way before closing
certain areas to off-road vehicles. 43 Instead, as mentioned above, when determining whether a
valid R.S. 2477 right-of-way exists, the presumption is in favor of the property owner[, the
United States]; and the burden of establishing public use for the required period of time[at
least ten years sometime prior to the adoption of FLPMA in 1976] is on those claiming it. 44
Thus, Defendants claim that precluding an R.S. 2477 defense creates an irrebuttable
40
Motion at 5.
41
Id. at 56.
42
Id. at 7.
43
43 U.S.C.A. 1712(c) (providing a list of criteria for development and revision of land use plans).
44
Southern Utah Wilderness Alliance, 425 F.3d at 768 (internal quotation marks and citation omitted).
presumption . . . that the BLM had the authority to close the right-of-way to off-road vehicles is
incorrect. The presumption is rebuttable by an appropriate claimant that carries its evidentiary
burden in an appropriate forumin a Quiet Title Action by a government entity that has
standing to raise a R.S. 2477 claim.
The limited waiver of sovereign immunity found in the Quiet Title Act extends only to
governmental entities, not private parties. Permitting a R.S. 2477 defense to challenge the
legality of the BLMs decision to close the area in question would be contrary to the limited
waiver of sovereign immunity granted by the Quiet Title Act and would effectively allow any
private party to assert an adjudicated R.S. 2477 defense as a means to open closed areas of
federal public land. 45
Accordingly, Defendants cannot rely on the 1979 Map to argue that the closure of
Recapture Canyon was invalid. The presumption of validity of the closure applies until a valid
R.S. 2477 right-of-way is established through a Quiet Title Act lawsuit brought by a government
entity. The 1979 Map does not warrant a new trial because it is inadmissible evidence as a matter
of law.
Because the 1979 Map and any other documents pertaining to an unproven R.S. 2477
right-of-way defense is inadmissible evidence, the 1979 Map fails to meet the materiality
element of the Brady analysis because there is [no] reasonable probability that, had the evidence
45
Although criminal defendants do not have standing to challenge the legality of the BLMs closure of certain trails
by asserting an R.S. 2477 right-of-way defense, it does not mean they are left without recourse. For example,
Defendants in the present case were free to argue that they had a reasonable and good faith belief that the area in
question was subject to an R.S. 2477 right-of-way and could have offered any admissible evidence relevant to their
good faith belief. Their good faith belief in the existence of a right-of-way would be relevant to the mens rea
element of the crime chargedwhether they knowingly and willfully violated BLM regulation 43 C.F.R.
8341.1(c). Under the circumstances of this case, however, the 1979 Map could not have been relevant to
Defendants good faith belief because at the time of the May 10, 2014 ride, Defendants were unaware of the 1979
Map and therefore could not have relied on the map.
been disclosed, the result of the proceeding would have been different. 46 The results of the
proceeding in this case would not have been different even if the 1979 Map had been disclosed,
because Defendants would not have been permitted to use it as evidence or otherwise raise a R.S.
2477 defense.
B. A new trial based on the States Notice of Intent to Sue is not warranted
The Tenth Circuit disfavors the granting of new trials and states that caution should be
used in granting them. 47 The court grants a new trial only in exceptional cases in which the
evidence preponderates heavily against the verdict. 48 A defendant is entitled to a new trial based
on newly discovered evidence where (1) the evidence was discovered after trial; (2) the failure
to discover the evidence was not caused by the defendants lack of diligence; (3) the new
evidence is not merely impeaching; (4) the new evidence is material to the principal issues
involved; and (5) the new evidence would probably produce an acquittal in a new trial. 49
Defendants contend that the States Notice of Intent to Sue, in combination with the
evidence which provided the basis for the States intent to sue and which will form the basis for a
future Quiet Title Action, is newly discovered evidence corroborating the existence of an R.S.
2477 right-of-way on the pertinent sections of Recapture Canyon Road. 50 Defendants believe
that the States Intent to Sue is material to the Governments ability to prove the elements of the
offenses charged. 51
46
Browning v. Trammell, 717 F.3d 1092, 1094 (10th Cir. 2013) (citation omitted).
47
United States v. Gleeson, 411 F.2d 1091, 1093 (10th Cir. 1969).
48
United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994).
49
United States v. Pearson, 203 F.3d 1243, 1274 (10th Cir. 2000) (citation omitted).
50
Reply at 9.
51
Id.
10
For largely the same reasons set forth above, the States Intent to Sue is not material
because it is inadmissible to challenge the legality of the BLMs decision to close the area in
question. The States Intent to Sue is also immaterial because it does not establish an R.S. 2477
right-of-way, but simply notifies the United States Department of the Interior of the States intent
to possibly file a civil lawsuit sometime in the future based on its position that an R.S. 2477
right-of-way exists and has existed since at least 1976 on the Recapture Canyon Road. 52
CONSLUSION
For the reasons set forth above, it is hereby ORDERD that the Motion 53 is DENIED.
Dated October 22, 2015.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
52
See Notice of Intent to Sue, docket no. 185-5, filed August 25, 2015.
53
Docket no. 185.
11
Case 2:14-cr-00470-DN-EJF Document 239 Filed 11/25/15 Page 1 of 17
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA
vs.
Monte Jerome Wells
) GUIDELINE
)
) PRESENTENCE INVESTIGATION REPORT
)
) Docket No.: 1088 2:14CR00470-002
)
)
Prepared for:
The Honorable David Nuffer

Chief U.S. District Judge
Prepared by:
Glen Manross
U.S. Probation Officer
Salt Lake City, UT
801-535-2780
Glen_Manross@utp.uscourts.gov
Assistant U.S. Attorney

Jared C. Bennett
185 S. State St., Ste. 300
(801)325-3259
Defense Counsel
Nathan A. Crane
10 Exchange Place 11th Floor
P.O. Box 45000
Salt Lake City, UT 84145-5000
801-521-9000
nac@scmlaw.com
Lake Dishman
185 S. State St., Ste. 300
801-325-1409
lake.dishman@usdoj.gov
Sentence Date:
December 18, 2015
Offense:
Count 1:
Conspiracy to Operate Off-Road Vehicles on Public Lands Closed to OffRoad Vehicles
18 U.S.C. 371, 18 U.S.C. 3559(a)(6)
Not more than 1 years imprisonment/$100,000.00 fine
(Class A Misdemeanor)
Count 2:
Operation of Off-Road Vehicle on Public Lands Closed to Off-Road
Vehicles
43 U.S.C. 1701, 43 U.S.C. 1733, 43 C.F.R. 6341.1(c), 18 U.S.C.
3559(a)(6), and 18 U.S.C. 2; Not more than 1 year
imprisonment/$1,000.00 fine (Class A Misdemeanor)
Date Report Prepared: June 15, 2015
Date Report Revised: November 25, 2015
Mandatory
Minimum:
Date of Offense:
Date of Arrest:
Release Status:
None
On or About February 27, 2014, through May 10, 2014
Summons Issued for Initial Appearance held on October 17, 2014
Own Recognizance
Detainers:
None
Codefendants:
Phillip Kay Lyman - 1088 2:14CR00470-1, Sentencing scheduled for

December 18, 2015
Jay Demar Redd - 1088 2:14CR00470-3, 1088 2:14CR00470-3, Charges
dismissed November 11, 2014
Shane Morris Marian - 1088 2:14CR00470-4, Acquitted May 1, 2015
Franklin Trent Holliday - 1088 2:14CR00470-5, Acquitted May 1, 2015
Related Cases:
None
Identifying Data:
Date of Birth:
Age:
Race:
Hispanic Origin:
Sex:
Height:
Weight:
Eyes:
Hair:
July 6, 1964
51
White
Non-Hispanic origin
Male
5 7
250 pounds
Brown
Brown
SSN#:
FBI#:
USM#:
State ID#:
ICE#:
PACTS#:
518-78-9949
349888AA1
21134-081
None assigned
N/A
724911
Education:
Dependents:
Citizenship:
Immigration Status:
Country of Birth:
Place of Birth:
16
4
U.S. Citizen
N/A
United States
Idaho
Legal Address:
216 West Center Street

Monticello, UT 84535
2
Residence Address: 216 West Center Street

Alias(es):
Also Known As: Wells , Monte G.

Also Known As: Wells , Monty Jerome
Also Known As: Well , Monte Jerome
Alternate IDs:
Alternate State ID Number: ID00127854
Restrictions on Use and Redisclosure of Presentence Investigation Report. Disclosure of this presentence investigation report
to the Federal Bureau of Prisons and redisclosure by the Bureau of Prisons is authorized by the United States District Court
solely to assist administering the offenders prison sentence (i.e., classification, designation, programming, sentence calculation,
pre-release planning, escape apprehension, prison disturbance response, sentence commutation, or pardon) and other limited
purposes, including deportation proceedings and federal investigations directly related to terrorist activities. If this presentence
investigation report is redisclosed by the Federal Bureau of Prisons upon completion of its sentence administration function, the
report must be returned to the Federal Bureau of Prisons or destroyed. It is the policy of the federal judiciary and the Department
of Justice that further redisclosure of the presentence investigation report is prohibited without the consent of the sentencing
judge.
PART A. THE OFFENSE

Charge(s) and Conviction(s)
1.
On September 17, 2014, Phillip Kay Lyman, defendant Monte Jerome Wells, Jay Demar
Redd, Shane Morris Marian and Franklin Trent Holliday were named in a two count
Misdemeanor Information charging violations of Conspiracy to Operate Off-Road
Vehicles on Public Lands Closed to Off-Road Vehicles, and Operation of Off-Road
Vehicle on Public Lands Closed to Off-Road Vehicles.
2.
On November 7, 2014, the United States Attorneys Office filed a motion to dismiss
charges against Jay Demar Redd as, through counsel, Mr. Redd provided evidence to the
United States subsequent to the filing of the information that negated the requisite state of
mind to support the criminal charges against him in the information. Based upon this
newly provided evidence, and in the interests of serving justice, the Court granted the
dismissal on November 12, 2014.
3.
On May 1, 2015, a jury acquitted codefendants Shane Morris Marian and Franklin Trent
Holliday of all charges. Codefendant Phillip Kay Lyman was convicted on both counts.
4.
On May 1, 2015, the defendant was found guilty by jury trial to two count(s) of the twocount Indictment. Count 1 charged Conspiracy to Operate Off-Road Vehicles on Public
Lands Closed to Off-Road Vehicles, in violation of 18 U.S.C. 371, 18 U.S.C.
3559(a)(6); Count 2 charged Operation of Off-Road Vehicle on Public Lands Closed to
Off-Road Vehicles, in violation of 43 U.S.C. 1701, 18 U.S.C. 3559(a)(6), 43 U.S.C.
1733 and 18 U.S.C. 2.
The Offense Conduct
5.
Since the 1960s there has been a trail through Recapture Canyon located near Blanding,
Utah, that was used by San Juan County residents and entities for travel, mining, grazing
cattle, and other purposes. Presently, Recapture Canyon is considered Bureau of Land
Management (BLM) federally controlled land due to multiple sites of archeological
interest that include Native American ancestral Puebloan cliff dwellings, particularly in
the south end of the canyon.
6.
In the 1980s, the San Juan Water Conservancy District applied for a water pipeline right
of way that was granted by the BLM due to a construction of a dam. The right of way
permitted the Water Conservancy District to put in a pipeline several feet below the
ground in Recapture Canyon and also allowed the Water Conservancy District to
maintain that pipeline and perform routine inspections of it. In 1987, the pipeline was
completed where the trail above it became known as the Pipeline Road.
7.
Sometime in or around the fall of 2005, two individuals decided to expand the track or
right of way past the Pipeline Road at the north end of Recapture Canyon. During the
spring of 2006, a concerned citizen reported the expansion to the BLM field office in
Monticello, Utah.
8.
Sometime in or around the fall of 2005, an unauthorized all-terrain-vehicle (ATV) trail

was constructed on BLM-controlled land within Recapture Canyons north end near
Blanding, Utah. Recapture Canyon contains multiple sites of archeological interest, to
include Native American ancestral Puebloan cliff dwellings. During the spring of 2006, a
concerned citizen discovered the illicit trail during a hike, and reported the existence of
the trail to the BLM field office in Monticello, Utah.
9.
San Juan County officials determined the ATV trail could provide enhanced access to the
canyon for visitors, increase tourism in the area, and provide economic benefits. County
officials also noted the canyon had been used for grazing cattle, for mining, for travel,
and other uses for many years, and that trails or roads had existed within parts of the
bottom of the north end of the canyon many years prior to 2005. In anticipation of a
possible trail closure by the BLM, San Juan County officials filed a Right of Way (ROW)
application on March 30, 2006, to formally recognize the trial that their San Juan County
residents had used for the last fifty years. Despite the efforts of San Juan County, in
September of 2007, the BLM posted temporary closure signs prohibiting ATV travel on
the trail or right of way. Despite the efforts of San Juan County, in September of 2007,
the BLM posted closure signs prohibiting motorized travel on the illicit trail. The closure
letter indicated the trail was being closed due to damage to the cultural resources in the
Recapture Canyon area resulting from OHV use, which BLM personnel have observed
and documented, and the likelihood of continuing damage from OHV use. The letter
indicated there would not be a permanent closure, and that the decision to temporarily
close the area would not change the designation in the 1991 San Juan Resource
Management Plan (RMP) that the lands including the Recapture Canyon area were
open to cross country motorized use. However, the area would be closed to OHV use
until the considerable adverse effects leading to the closure have been eliminated and
measures have been implemented to prevent recurrence.
10.
The county amended their ROW application on September 16, 2008, and again on
November 12, 2012. The 2008 amendment took off approximately 7 miles of the
proposed trail that was thought to go through more archeologically sensitive areas. The
2012 amendment sought to include additional trails on the rim of the canyon. Both times
the county amended their ROW plan, they hoped the BLM would quickly approve the
plans and reopen the trail for motorized use. Conversely, conservation groups such as the
Sierra Club, The Wilderness Society, The Grand Canyon Trust, Great Old Broads for
Wilderness, NRDC and Southern Utah Wilderness Alliance publicly opposed the ROW
applications. In a joint letter to the director of the BLM, these organizations wrote
Granting a right-of-way to the county for the illegal ORV trail in Recapture Canyon
would send a message loud and clear that vandalism, illegal trail construction, bully
tactics, and other unlawful behavior will be rewarded. Such reckless public land
management decisions would result in more vandalism to archeological resources and
encourage construction of additional illegal motorized trails on our public lands
11.
BLM criminal investigations into the construction of the trail were ongoing for several
years. Investigators found the trail builders had cut trees, moved boulders, installed rock
cribbing and drainage pipes, and constructed at least one wooden bridge. Archeologists
working under contract of the BLM completed a damage assessment in which they
determined there were more than 30 sites in the area of the trail which were eligible for
5
listing on the National Register of Historic Places. Sites included artifact scatters,
granaries, jacal or mud-and-stick woven walls, rock alignments, cliff dwellings and
multi-room masonry unit pueblos. Archeologists found that site features had been
directly and negatively impacted along the ATV trail. In a February of 2008 damage
assessment report, it was determined that the illicit trail had caused $309,539.75 in total
site damage. Some of the damage was deemed irreparable, and repairs that were possible
had an associated cost assessment of $90,734.27. On January 12, 2011, the United States
Attorneys Office for the District of Utah filed misdemeanor charges in U.S. District
Court against two Blanding residents, K.B. and D.F. for constructing the unauthorized
trail. These individuals received combined fines of approximately $35,000 later in
January of 2011.
12.
On February 27, 2014, defendant Philip Kay Lyman, a San Juan County Commissioner
designated as the County contact person to interact with the BLM regarding Recapture
Canyon, held a town meeting regarding various land issues, including the closure of
Recapture Canyon to motorized vehicles. Constituents of Commissioner Lyman were
concerned that the temporary closure had gone on for more than six years. Someone
suggested a protest wherein participants would ride ATVs in or around the area of
Recapture Canyon. A date of May 8, 2014 was suggested for the protest as this date
would commemorate the date of a raid on Blanding, Utah, homes in 1986 by federal
agents to confiscate what were believed to be illegally obtained Native American
artifacts.
13.
On March 2, 2014, Mr. Lyman began advertising the proposed ATV ride through the
restricted area of Recapture Canyon on social media. On April 11, 2014, Mr. Lyman
advertised the protest ride through the publishing of an article in the Deseret News. Once
the article was published, Mr. Lyman further promoted the article through social media.
14.
Between March 2 and April 13, 2014, defendant Lyman and then BLM state director J.P.
exchanged several emails regarding the ATV ride, and met for lunch on at least one
occasion. Mr. Lyman used his county commissioner email address in each of their
communications. During a March 2, 2014 communication, Mr. Lyman asked J.P. to
legalize the planned ATV ride. Within the email, Mr. Lyman included a link to a
Facebook post he had made to advertise the ride. This Facebook posting included
information written by Mr. Lyman in which he acknowledged the illegality of the
planned ride. The defendant also wrote within one of the emails to J.P. that While the
BLM may claim jurisdiction, and while a federal judge may grant a federal agency
federal jurisdiction over everything, the basic right of self-government (along with
statehood) nullifies such fantastic innovations.
15.
On April 17, 2014, defendants Philip Kay Lyman and Monte Jerome Wells published and
promoted, on various social media websites, an invitation, with accompanying
instructions, for the public to join the proposed ATV ride through the off-road restricted
area of Recapture Canyon on May 10, 2014. The new date was chosen as it was a
Saturday and the defendants determined more participants would be available to join in
the protest ride on a weekend day than on a weekday. On April 27, 2014, Mr. Lyman
sent out another announcement on Facebook about the ride, about its February 27th
genesis, the reasons for protesting federal overreach, and that people should come and
6
participate in the protest even if they do not ride ATVs. In the announcement, Mr.
Lyman admitted the BLM did not allow ATVs on the trail in Recapture Canyon. On
April 28, 2014, defendant Wells published Mr. Lymans 4/27 announcement about the
ride on The Petroglyph, which is a website/blog controlled by Mr. Wells. Mr. Wells
added some of his own flourishes to the announcement. Around the same period, Mr.
Wells and Mr. Lyman conducted a 3-part video interview within Recapture Canyon.
Within the videos, Mr. Lyman identifies himself as a county commissioner.
16.
On April 28, 2014, BLM official L.P. sent a warning letter to Mr. Lyman stating I
strongly urge you to cancel the proposed ride in the closed portion of the canyon. L.P.
further warned BLM will seek all appropriate civil and criminal penalties against anyone
who participates in the proposed ride. The letter also suggested that, if Mr. Lyman were
to go through with the ride, BLM officials would like to walk through the canyon with
him ahead of time to point out archeological sites he and the other participants should
avoid during the ride. Mr. Lyman responded to the BLM letter with a three-page letter on
county letterhead stating he understood the BLM did not approve of his actions. The
defendant agreed to walk through the canyon with BLM officials prior to the protest ride,
and he followed through with this tour a few days later. On May 2, 2014, the BLM sent
Mr. Lyman another warning letter reminding him of potential civil and criminal penalties
for riding ATVs through the canyon.
17.
On May 1, 2014, Phil Lyman had a twenty-minute telephone call with BLM state director
J.P. that was recorded. During that telephone call, BLM state director J.P. exchanged
dialogue with Phil Lyman as follows:
BLM state director J. P.: So I am, like you, proud to be in Utah, extremely proud to live
in this culture and this society of Utah. I appreciate it. I really do. I have a great
affinity and appreciation for this, and Im not just blowing smoke at you, Phil. I really
deeply feel this stuff at a very deep level. I could never pay back what Ive been given in
my life, but I want you to know that regardless of what all goes on, we all have different
opinions, and I believe on this one, we simply gracefully agree to disagree. And thats
thats America, we can gracefully disagree on certain topics. And you absolutely have
every right to feel the way you feel, to believe the way you believe, absolutely. And I
and Im not that far off where you are. Im really not that far off from where you are.
Theres nothing I can do, whatever happened in the late 80s, or whenever all this stuff
happened. But I can make some change, you know. Nobodys gonna get arrested, and
nobodys gonna do that kind of stuff, were not gonna do that. But I really do
appreciate it. And Phil, I just wanted to say that regardless of what you all decide to do
on the 10th, I hope it is as you describe. You know, that you can have your celebration,
and then you can ride or walk down into the canyon, that would be wonderful. But you
and I, I am going to call you on the next week, and were gonna talk about all kinds of
other issues that we need to do with Summit county, and to add value to the community
that you feel very passionate and strongly about. And so, but I can tell you that you
and I are gonna talk, regardless, and its gonna be after, its gonna be before, its going
to be during, its gonna be a month or a year, were gonna talk about these things. And
in some cases we simply I hope you will say, gracefully well disagree. And so I
just wanted to call, Phil, and just continue our conversation.
Phil Lyman: And I do appreciate that J[]. Ive enjoyed every interaction Ive had with
you. I respect you, and I genuinely enjoy talking to you as a person.
18.
On May 6, 2014, Phil Lyman went on a tour with a BLM representative at Phils request,
wherein they walked through the south end of Recapture Canyon for over an hour, and
the BLM representative told Phil Lyman where he recommended to change the current
trail, and where he recommended to keep the current trail the same.
19.
On May 7, 2014, Phil Lyman stated on The Petroglyph post that: For my part I plan (as
of this writing) to come into Recapture from the North end. About two miles down the
road you come to the BLM closure sign. The road continues from there in the closed
about a mile or 1.5 miles until you come to where the water pipeline leaves the canyon.
At that point the trial starts to wind through thick willows. I expect to turn around at that
point and drive back to the closest sign and head out of the Canyon on a trial going West.
That trial, which is legal and open, goes up on top of the Canyon.
20.
On May 7, 2014, Mr. Lyman made an announcement through Mr. Wells Petroglyph site
that he planned on driving past a closure sign near the top of the canyon, but stated others
who wanted to participate in the protest ride could remain on legal trails if they chose not
to ride illegally. On May 9, 2014, Mr. Lyman talked to at least two television news
reporters, and conceded his planned conduct had not been approved by the BLM. To a
channel 2 reported, Mr. Lyman stated Im only breaking the law from a federal
standpoint.
21.
News of the planned protest ride reached C.B., a Nevada rancher who had refused to pay
more than $1 million in grazing fees he owed the U.S. government. C.B. and his
supporters had been involved in a standoff with the BLM in Nevada in April of 2014.
C.B. reportedly urged his supporters to join Mr. Lyman in his protest. C.B.s son, R.B.,
and other supporters from out of state attended a pre-ride rally in a city park in Blanding
on the morning of May 10, 2014. During the rally, Mr. Lyman made statements which
reflected he might be second-guessing his decision to ride illegally in the closed area of
Recapture canyon. During his speech at the rally, Mr. Lyman stated I believe this is the
protest here, and I think weve sent a strong message I have no moral problem with
crossing that (closure) line. But I believe itll cause more harm than good to cross that
line today. R.B. reportedly responded by challenging Mr. Lyman and the crowd to take
action, to show that the land was the people of San Juan Countys, not the BLMs. R.B.
reportedly stated. Im here to support (Lyman), and Im here to open a trail. If were
not opening a trail, Im going to get in my truck and go home. Several others in the
crowd reportedly challenged Mr. Lyman to take a stand and lead those who had gathered
into the canyon. One man said Lymans words showed a language of weakness. Mr.
Lyman then replied Theres no language of weakness here Its not wimping out. I
think its an intelligent move to do this morning.
22.
Eventually, Mr. Lyman agreed to go through with the ride through part of the closed
section of Recapture Canyon. He and dozens of supporters, to include codefendant Wells,
rode on their ATVs from downtown Blanding to Recapture Canyon. Defendants Lyman
8
and Wells both entered the closed area and traveled on the trail for a couple of miles to
the end of the Pipeline Road, then turned around San Juan County Sheriffs Office
personnel watched the event from horseback in an effort to keep the peace and safeguard
the constitutional rights of everybody. The County Sheriff stated to a reporter We
dont want to see clashes between citizens, and clashes between BLM and militia. This is
not going to be Bunkerville. Due to safety concerns, BLM law enforcement personnel
were not a visible presence during the protest ride. Instead, they set up trail cameras
before the ride in hopes of documenting those ATV riders who decided to ride through
the closed area. Their trail cameras, however, malfunctioned and did not prove to be
fully sufficient in identifying riders. BLM rangers, however, were present at the ride and
took photographs of several riders including the defendants. At a later date, officials
were also able to retrieve photographic evidence from non-law enforcement sources,
resulting in the Misdemeanor Information for the instant offense.
Some
environmentalists who had planned a counter-protest ended up staying away from
Recapture Canyon for safety reasons.
23.
Defendants Lyman and Wells both entered the closed area and traveled a closed trail for
a couple miles to the end of a pipeline, then turned around, thus avoiding a smaller and
more sensitive trail, where there was a greater potential for negative impact to
archeological sites. Other riders in the group continued to ride into this sensitive area.
24.
Following the protest ride on May 10, 2014, Mr. Lyman posted on Facebook how proud
he was of everyone who participated in the ride. On May 12, 2014, during a county
commission meeting, Mr. Lyman stated And as Ive told anybody Ive talked to, I know
it wasit was mymy event and I take responsibility for it and will continue to do that.
After his guilty verdict on May 1, 2015, Mr. Lyman stated to a reporter that the decision
was a shout out to county officials that they do not have jurisdiction in their counties, It
is a federal jurisdiction state, or a territory. I dont know if you can call it a state.
Victim Impact
25.
The provisions of the Mandatory Victim Restitution Act of 1996 apply to this Title 18
offense.
26.
The government has been awarded restitution in the amount of $95,955.61, payable to:
Monticello Field Office
365 North Main Street
27.
Potential non-monetary impact of the defendants actions may include further

degradation of the relationships between county and federal agencies operating in San
Juan County, and the defendants contribution to the creation of a climate wherein
environmentalists and recreational hikers report they are hesitant to venture onto trails in
San Juan County for fear of their safety.
28.
Former San Juan County Commissioner Lynn Stevens expressed I was a commissioner
when we first made the ROW application for Recapture Canyon The conditions of the
9
trail merited the closure We expected it to take some time for the BLM to decide on
the application, but it did get frustrating after months turned into years. However, there is
rarely a valid excuse to break laws and rules, and what Phil has done through his actions
is to delay the process for even longer When he first took office, he managed to create
an antagonist relationship with the BLM, and that is not the way to get things done
When he decided to pull this stunt, I told him it would just make things worse and that it
would delay the process Well it has. Phil organized this protest to call attention to
and make an example of the BLM, but in the end, an example needs to be made of him
and his illegal actions.
29.
Conversely, Larry W. Sorrell, president of San Juan Public Entry & Access Rights
(SPEAR), wrote Recently five individuals were charged with trespass in connection
with a protest held in Blanding and in Recapture Canyon. Two of those citizens have
now been convicted. These two citizens are both pillars of the community and are held in
high esteem by all the citizens of San Juan County. They have worked with our
organization to preserve and protect the beauty of our county and are always there to
participate in community projects as well as doing their duty as elected public officials.
30.
Ronnie Egan, former Executive Director of Great Old Broads for Wilderness, reported
that, due to her organizations involvement in getting the BLM to close the trail in
Recapture Canyon, signs were posted in the canyon in 2010 threatening the lives of
members of her organization. Ms. Egan further stated that she and other members of her
environmental organization were planning to attend the May 10th 2014, ATV protest ride
as silent witnesses. However, just prior to the event, her picture was posted on the
Petroglyph blog with additional threats. The organization then decided it was unsafe to
attend the event. Ms. Egan relates that some of the members of Great Old Broads for
Wilderness are afraid to hike in San Juan County. Ms. Egan believes the Court has an
obligation in this case to send a message that rule of law is not in suspension in San Juan
County.
31.
Lynell Schalk, a retired BLM special agent, stated, The trail created in 2005 in
Recapture Canyon was not an existing road. There were some paths and ditches in that
end of the canyon, but the people who blazed the ATV trail in 2005 went over a lot of
area that had not previously had roads, and the path created significant damage to
multiple archeological sites The fact that the BLM was or is even considering granting
a right-of-way is improper. The ROW application should have been denied outright and
the trail closed permanently. To open that trail would be analogous to letting bank
robbers keep money they have taken from a bank. As for the protest ride through the
canyon, that too resulted in irreparable damage and the actions of these defendants is
inexcusable. They need to be punished sufficiently to discourage this type of destructive
behavior and to promote respect for the law and for our archeological resources.
Adjustment for Obstruction of Justice
32.
The probation officer has no information indicating the defendant impeded or obstructed
justice.
10
Adjustment for Acceptance of Responsibility

33.
As the defendant did not enter a plea of guilty to his offense of conviction, he does not
appear to be qualify for an adjustment for acceptance of responsibility under U.S.S.G.
3E1.1. Application Note 2 in this section indicates this adjustment is not intended to
apply to a defendant who puts the government to its burden of proof at trial by denying
the factual elements of guilt.
Offense Level Computation
34.
The 2014 Guidelines Manual, incorporating all guideline amendments, was used to
determine the defendant's offense level. USSG 1B1.11.
35.
Base Offense Level: The guideline for 43 U.S.C. 1701 offenses is found in
USSG 2B2.3 of the guidelines. That section provides that an offense involving
Operation of Off-Road Vehicle on Public Lands Closed to Off-Road Vehicles has
a base offense level of four. USSG 2B2.3.
36.
Specific Offense Characteristics: None.
37.
Victim Related Adjustment: None.
38.
Adjustment for Role in the Offense: None.
39.
Adjustment for Obstruction of Justice: None.
40.
Adjusted Offense Level (Subtotal):
41.
Chapter Four Enhancement: None.
42.
Acceptance of Responsibility: As of completion of the presentence investigation,

the defendant has not clearly demonstrated acceptance of responsibility for the
offense. U.S.S.G. 3E1.1.
Total Offense Level:
43.
Offense Behavior Not Part of Relevant Conduct:

44.
None
PART B. THE DEFENDANTS CRIMINAL HISTORY

Juvenile Adjudication(s)
None known.
Adult Criminal Conviction(s)
45.
The defendant has no criminal convictions which are countable for criminal history
points under U.S.S.G. 4A1.1. Mr. Wells had a DUI conviction in Ririe, Idaho, in 1984
11
and an additional DUI in Driggs, Idaho, in 1986 for which records are no longer
available.
Criminal History Computation
46.
The criminal convictions above result in a subtotal criminal history score of zero.
47.
The total criminal history score is zero. According to the sentencing table in USSG
Chapter 5, Part A, a criminal history score of zero establishes a criminal history category
of I.
Other Criminal Conduct
48.
None.
Pending Charges
49.
None.
Other Arrests
50.
None.
PART C. OFFENDER CHARACTERISTICS

Personal and Family Data
51.
Monte Jerome Wells was born on July 6, 1964, in Rexburg, Idaho, to Larry Wells and
Utona Ray Erickson Garcia. The defendants parents are both retired. His mother resides
in Ririe, Idaho, and his father lives in Monticello, Utah. The defendant has eight siblings
to include brother John Spencer Wells of Roosevelt, Utah; brother Christopher Wells of
American Fork, Utah; brother Torren Wells of Arizona; sister Rebekah Wells of Salt
Lake City, Utah; brother Gary Garcia of Florida (active military); sister Anngela RitterTruxel of Wyoming; sister Michelle Jeppesen of Rexburg, Idaho, and sister Tereena
Barnes of Rigby, Idaho.
52.
The defendant married Sheila Rae Erickson in Idaho Falls, Idaho, on August 3, 1989.
The Wells have six children to include Tawna, Jared, Jaxson, Carson, Conager and
Samara. A home visit was conducted on May 19, 2015. The defendant resides in a
modest one-family residential home near downtown Monticello, Utah.
53.
The defendants wife, Sheila Wells, was contacted for corroboration of the family history
and she stated Monte is a wonderful husband and father. He has strong opinions, he gets
involved in community matters, and sometimes that gets him into trouble. But, he has a
strong sense of what is right and what is wrong, and he stands up for what he thinks is
right. I am terrified at the thought of Monte going to jail; especially over an issue like
this.
12
54.
Ted MacDougal was contacted as a character reference. Mr. MacDougal stated I have
known Monte for eight years and I find him to be amiable, likeable and pleasant to be
around. He is outspoken, but he is a good man and he is raising a good family. Opinions
about Recapture Canyon vary, and I think there has been much too much attention drawn
to this issue. There has been routine activity on the pipeline road, especially, and its too
bad this has turned into such a big issue.
Physical Condition
55.
The defendant underwent back surgery on April 14, 2015 in Payson, Utah (verified) due
to lower spine and nerve issues. He does not list any other health concerns, and his
primary physicians assistant is Michelle Lyman of Blanding, Utah.
Mental and Emotional Health
56.
The defendant has never been under the care of mental health professionals and does not
display symptoms suggesting serious emotional problems.
Substance Abuse
57.
The defendant had issues with alcohol dependence as a young man, and has been in
recovery since 1986. He completed inpatient counseling at the Walker Center in
Gooding, Idaho, followed by a year of outpatient aftercare. He has remained alcohol-free
since 1986. While the defendant has been sober for 29 years, his DUI convictions have
significantly impacted his ability to be in the profession of his choosing. Once federal
and state agencies learned of his DUIs, the defendants employment opportunities were
terminated even though his convictions were several years old.
Educational, Vocational and Special Skills
58.
The defendant completed a B.A. with emphasis in Archeology and a major in

Anthropology at Boise State University in 2003. Additionally, he has gone through a
plethora of military (Army), law enforcement, search and rescue, first aid and mapping
training programs.
Employment and Military Record
59.
The defendant has owned and operated Off The Beaten Path Maps since 2004. He
creates and sells maps for industrial and recreational (hiking, ATV, hunting) purposes.
He was also appointed to the Monticello City Council in 2014 (after his participation in
the instant offense. The defendants fellow city council member, George Rice, was
contacted as a professional reference. Mr. Rice stated I have always been impressed
with Montes problem-solving abilities, and he is able to think outside of the box and
come up with great solutions. He is a skillful and honorable man; he has a great family;
and he is very active in the community.
60.
The defendant has prior work experience in geological mapping, retail security, site
security, and law enforcement. The defendant was a reserve deputy, a police officer, a
13
U.S. Customs Inspector, and he was a Border Patrol Trainee for a short term, losing his
position after completing training due to his prior DUI arrests.
Financial Condition: Ability to Pay
61.
The defendant and his wife are both self-employed. Their monthly income varies, but
averages approximately $4,000-$5,000, and their necessary expenses currently exceed
their earnings. They have had to dip into their modest savings, and to leave balances on
credit cards, several times during the past year to cover bills. $4,000 to $5,000. Mr.
Wells wife has had a reduction in hours because they have a daughter that has some
problems that have been ongoing for the last couple of months. The daughter has been
sent to live with Montes mother in Idaho Falls where she is being treated by a counselor
that Mr. Wells is paying for. The defendants wife has been traveling to and from Idaho
Falls pretty regularly, which has cut her hours at work. Also, the defendants mapping
business is all but dead. He used to do a lot of work for the county, but they have
reportedly stopped working with the defendant.
62.
Based on his financial condition, as well as the large amount of restitution, it appears the
defendant does not have the ability to pay a fine.
PART D. SENTENCING OPTIONS

Custody
63.
Statutory Provisions: Count 1: The maximum term of imprisonment is one year. 18

U.S.C. 371 and 18 U.S.C. 3559(a)(6). Count 2: The maximum term of imprisonment
is one year. 43 U.S.C. 1701 and 18 U.S.C. 3559(a)(6).
64.
Guideline Provisions: Based upon a total offense level of 4 and a criminal history
category of I, the guideline imprisonment range is zero months to six months. Since the
applicable guideline range is in Zone A of the Sentencing Table, a sentence of
imprisonment is not required unless the applicable guideline in Chapter Two expressly
requires such a term. USSG 5C1.1(b).
Impact of Plea Agreement
65.
None.
Supervised Release
66.
Statutory Provisions: Count 1: The Court may impose a term of supervised release of
not more than one year. 18 U.S.C. 3583(b)(3). Count 2: The Court may impose a term
of supervised release of not more than one year. 18 U.S.C. 3583(b)(3).
67.
Multiple terms of supervised release shall run concurrently. 18 U.S.C. 3624(e).
68.
Guideline Provisions: Count 1: Since the offense is a Class A Misdemeanor, the

guideline range for a term of supervised release is one year. USSG 5D1.2(a)(3). Count
14
2: Since the offense is a Class A Misdemeanor, the guideline range for a term of
supervised release is one year. USSG 5D1.2(a)(3).
Probation
69.
Statutory Provisions: Count 1: The defendant is eligible for up to five years probation
because the offense is a misdemeanor. 18 U.S.C. 3561(c)(2). Count 2: The defendant is
eligible for up to five years probation because the offense is a misdemeanor. 18 U.S.C.
3561(c)(2).
70.
Multiple terms of probation shall run concurrently. 18 U.S.C. 3564(b).
71.
Guideline Provisions: Count 1: If probation is imposed, the term shall be no more than
three years if the offense level is five or less. USSG 5B1.2(a)(2). Count 2: If probation
is imposed, the term shall be no more than three years if the offense level is five or less.
USSG 5B1.2(a)(2).
72.
Since the applicable guideline range is in Zone A of the Sentencing Table, a condition
requiring a period of community confinement, home detention, or intermittent
confinement may be imposed, but is not required. USSG 5B1.1, comment. n.1(a).
Fines
73.
Statutory Provisions: Count 1: The maximum fine is $100,000.00. 18 U.S.C. 3571(b).

Count 2: The maximum fine is $1,000.00. 43 U.S.C. 1733.
74.
Count 1: A special assessment of $25.00 is mandatory. 18 U.S.C. 3013. Count 2: A

special assessment of $25.00 is mandatory. 18 U.S.C. 3013.
75.
Guideline Provisions: The fine range for this offense is from $250 to $5,000. USSG
5E1.2(c)(3).
76.
Costs of prosecution shall be imposed on the defendant as required by statute. USSG

5E1.5. In determining whether to impose a fine and the amount of such fine, the Court
shall consider, among other factors, the expected costs to the government of any term of
probation, or term of imprisonment and term of supervised release imposed. USSG
5E1.2(d)(7) and 18 U.S.C. 3572(a)(6). These costs may include drug and alcohol
treatment, electronic monitoring, and/or contract confinement costs. The most recent
advisory from the Administrative Office of the United States Courts, dated June 24, 2014,
provides the following monthly cost data:
Daily
Monthly
Annually
Bureau of
Community
Prisons Facilities Correction Centers
$80.25
$72.91
$2,440.97
$2,217.73
$29,291.62
$26,612.76
15
Supervision by
Probation Officer
$8.66
$263.50
$3,162.03
77.
The defendant shall pay interest on any fine of more than $2,500, unless the fine is paid
in full before the 15th day after the date of judgment. If the Court determines that the
defendant does not have the ability to pay interest under this subsection, the Court may
(a) waive the requirement for interest, (b) limit the total of interest payable to a specific
dollar amount, or (c) limit the length of the period during which the interest accrues. 18
U.S.C. 3612.
Restitution
78.
Statutory Provisions: Pursuant to 18 U.S.C. 3663A, restitution in the total amount of

$95,955.61 shall be ordered in this case. Restitution, as set forth below, is due and owing
to the following victim:
Monticello Field Office
365 North Main Street
79.
Guideline Provisions: Restitution shall be ordered. USSG 5E1.1.
80.
The defendant shall pay interest on any restitution of more than $2,500, unless the
restitution is paid in full before the 15th day after the date of the judgment. If the Court
determines that the defendant does not have the ability to pay interest under this
subsection, the Court may (a) waive the requirement for interest, (b) limit the total of
interest payable to a specific dollar amount, or (c) limit the length of the period during
which the interest accrues. 18 U.S.C. 3612.
Denial of Federal Benefits
81.
Statutory Provisions: None.
82.
Guideline Provisions: None.

Mandatory Sentencing Provisions
83.
The defendant shall not commit any federal, state, or local crime and if the defendant is a
convicted felon, shall be prohibited from possessing a firearm or other dangerous device.
In addition, the defendant shall not possess a controlled substance and shall comply with
the standard conditions of supervision as adopted by this Court.
84.
For offenses committed on or after September 13, 1994, in accordance with the Violent
Crime Control and Law Enforcement Act of 1994, the defendant must submit to one drug
test within 15 days of placement on supervision and at least two periodic drug tests
thereafter, as directed by the probation officer, in addition to any other testing
requirements ordered by the Court, unless the Court finds that the defendant poses a low
risk of future substance abuse and suspends the requirement that the defendant submit to
mandatory drug testing.
16
PART E. FACTORS THAT MAY WARRANT DEPARTURE

85.
The probation officer identified no information concerning the offense or the offender
which would warrant a departure from the advisory guideline range.
PART F. FACTORS THAT MAY WARRANT A SENTENCE OUTSIDE OF THE

ADVISORY GUIDELINE SYSTEM
86.
Presentation of information in this section does not necessarily constitute a

recommendation for a variance from the advisory guideline range.
87.
Pursuant to 18 U.S.C. 3553(a), the Court, in determining the particular sentence to be

imposed, shall consider: the nature and circumstances of the offense and the history and
characteristics of the offender; the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment
for the offense, to afford adequate deterrence to criminal conduct, to protect the public
from further crimes of the defendant, and to provide the defendant with needed
educational and vocational training, medical care, or other correctional treatment in the
most effective manner. The Court shall also consider the kinds of sentences available.
88.
Concerning the history and characteristics of the defendant, Mr. Wells has two prior
DUIs in the mid 1980s, but has remained sober for 29 years. He is married, runs a small
business, and has six children.
17
Case 2:14-cr-00470-DN-EJF Document 239-1 Filed 11/25/15 Page 1 of 4
ADDENDUM TO THE PRESENTENCE REPORT

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
UNITED STATES V. MONTE JEROME WELLS, DKT. 2:14CR00470-002
OBJECTIONS
By the Government
On August 25, 2015, Assistant U.S. Attorneys Jared C. Bennett and Lake Dishman advised the
probation officer of the following objection to the presentence report.
Objection No. One: The government objects to the calculation of the guidelines under USSG
2B2.3. In place of this guideline, the government believes:
2X5.2 provides the appropriate Base Offense Level for Defendants conduct. The Guidelines
provide the Base Offense Level based upon Defendants offense of conviction. USSG
1B1.1(a)(1). The defendants were convicted of 18 U.S.C. 371 and 43 U.S.C. 1733(a). Of the
Base Offense Level Guidelines listed in Appendix A under 18 U.S.C. 371, none of them
provides the Base Offense Level for the Defendants conspiracy to violate 43 U.S.C. 1733(a).
The closest applicable Base Offense Guideline is section 2X1.1, which states that the Base
Offense Level for conspiracy is the same as the Base Offense Level for the substantive offense.
Here, the Base Offense Level for the substantive offense (i.e., 43 U.S.C. 1733(a)) is section
2X5.2. Although Appendix A states that section 2B2.3 applies to violations of 43 U.S.C.
1733(a), Appendix A contains a parenthetical reference limiting the applicability of section
2B2.3 only to crimes that are based on violations of 43 C.F.R. 4140.1(b)(1)(i). Defendants
substantive offense did not involve 43 C.F.R. 4140.1(b)(1)(i) because Defendants were not
convicted of [a]llowing livestock or other privately owned or controlled animals to graze on or
between [public lands] [w]ithout a permit, lease of other grazing use authorization . . . .
Instead, Defendants violation of 43 U.S.C. 1733(a) was based on violating 43 C.F.R.
8341.1(c), which precludes the operation of off-road vehicles . . . on those areas and trails
closed to off-road vehicle use. Consequently, Appendix A does not provide a Base Offense Level
Guideline for Defendants violation of 43 U.S.C. 1733(a) here.
Where, as here, Defendants have been convicted of a Class A misdemeanor that is not covered
by any other specific Guideline, section 2X5.2 applies. USSG 2X5.2. And under section 2X5.2,
Defendants Base Offense Level is 6. Given that the substantive offense carries a Base Offense
Level of 6, Defendants conspiracy conviction under 18 U.S.C. 371 also carries a Base Offense
Level of 6. USSG 2X1.1.
Response: The conspiracy in the instant offense involved an organized event wherein
individuals trespassed on ATVs in a canyon deemed to be sensitive by the Bureau of Land
Management (BLM) due to the existence of multiple sites of archeological interest. The
Date Addendum Prepared: November 25, 2015
Date Addendum Revised: Date Revised
guideline for the vast majority of federal trespassing offenses is found in USSG 2B2.3. This
guideline is used whether a defendant trespasses on federal lands, in a secure government
facility, at an airport, at a seaport, in a residence, at a national cemetery, or even in the White
House. This guideline has a base offense level of 4, while the governments suggested guideline
at USSG 2X5.2 possesses a base offense level of 6.
This offense does not involve issues of national security, it does not involve the obstruction of
(or damage to) critical infrastructure, nor does it involve a threat to the administration of justice
or to national defense. Also, it should be noted the BLM allows livestock grazing, horse riding
and hiking in Recapture Canyon. The defendants trespassed only in the form of transportation
they chose to use in the canyon. As such, it does not follow that the base offense level should be
higher than for other federal trespassing offenses.
Most importantly, under USSG 1B1.2, we are directed to use the most analogous guideline
for statutory provisions not listed in the Statutory Index. It would make sense to use USSG
2X5.2 if there were no guidelines analogous to the instant offense. In this case, the trespassing
guideline at USSG 2B2.3 is most analogous and it appears to be the appropriate guideline for
the Court to use. Therefore, no changes have been made to the base offense level.
Objection No. Two: The government believes Mr. Wells should receive an enhancement as a
leader/organizer as follows:
In addition to the Base Offense Level of 6, this Court should add 4 levels because Defendants
organized and led dozens of people in the illegal protest ride. Section 3B1.1 provides: If the
defendant was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive, increase by 4 levels. USSG 3B1.1. As shown below,
both Mr. Lyman and Mr. Wells meet the requirements for this 4-level increase.
First, the 4-level increase should apply to Mr. Lyman because he was the undisputed leader and
organizer of the conspiracy and May 10, 2014 illegal ride. When discussing the illegal ride in a
San Juan County Commission meeting on April 21, 2014, Mr. Lyman proclaimed himself to be
the ring leader and the spokesman of the ride. Trial Exhibit 18. The evidence at trial
corroborated that assertion because Mr. Lyman was the person who: (1) sent out information to
his constituents and to BLM about the ride, Trial Exhibit 22, 23, 24, 26, 34C, 35A, 35C; (2)
changed the date of the ride to May 10, 2014 so that more people can come, Trial Exhibit
35A; (3) held pre-ride rallies; Trial Exhibit 19A, 46A1, 65A, 70A; (4) appeared on television,
radio, and in the print media to promote the ride, Trial Exhibit 46A1, 99, 103A; and (5)
instructed protestors which trials were legal to ride and which were not. Trial Exhibit 105A. On
May 10, 2014, dozens of people, including Mr. Lyman, crossed the closure line with their
motorized vehicles and rode into Recapture Canyon. Accordingly, Mr. Lyman was the leader and
organizer of the illegal ride, which involved far more than 5 people.
Second, Mr. Wells should also receive a 4-level increase because he took an organizing role in
the offense. Mr. Wells met early on with Mr. Lyman and BLM State Director, Juan Palma, to
discuss the upcoming illegal ride. Testimony of Juan Palma; Trial Exhibit 22. He also repeatedly
served as an important medium through whom Mr. Lyman was able to convey his messages
about the ride to the public. Trial Exhibit 73, 64A, 65A, 69A, 70A, 71A, 74, 105A; ECF No. 72-2.
Mr. Wells also added his own flourishes to recruit others to come and join the illegal ride. Trial
Exhibit 73. Mr. Wells interviewed Mr. Lyman in a three-part YouTube series so that Mr. Lyman
could explain the reason for the upcoming illegal ride. Trial Exhibit 74 (transcript at ECF No.
72-2). After providing this extensive assistance in getting the word out about the illegal ride, Mr.
Wells joined Mr. Lyman and dozens of others by crossing the line with his motorized vehicle and
riding into the closed area of Recapture Canyon. Thus, Mr. Wells is an organizer and should
receive a 4-level increase.
Response:
As asserted by the government, codefendant Lyman is the undisputed leader and organizer of
the conspiracy and May 10, 2014 illegal ride. The role of defendant Wells was less defined. At
the time, he was not in public office and was not a public figure. He did regularly update a
political blog, however, and was able to help Mr. Lyman to relay information to his supporters
within his website and through other means. It appears the defendants participation in the
offense was in the capacity of a supporting role wherein he helped defendant Lyman to advertise
the ride, and he attended meetings in support of Mr. Lyman. While his efforts were helpful to
the codefendant, it does not appear that the role of Mr. Wells meets the criteria for the
enhancement in 3B1.1.
By the Defendant
On June 25, 2015, defense counsel Nathan A. Crane advised the probation officer he had no
objections to the guideline calculations in the presentence report.
Modifications
New paragraphs (5, 6, 7 and 8) have been added to the Offense Conduct section of the report per
request of codefendant Lymans defense counsel. These paragraphs add to the historical
accounting of the issues surrounding Recapture Canyon.
Language has been inserted into former paragraph 5 (now paragraph 9) to include information
about the San Juan County ROW application per request of Mr. Lymans defense counsel.
Wording was added to former paragraph 8 (now paragraph 12) to indicate codefendant Lyman
was designated as the County contact person to interact with the BLM regarding Recapture
Canyon per request of the codefendants counsel.
Date Addendum Prepared: November 25, 2015
Date Addendum Revised: Date Revised
New paragraphs were inserted into the report (now paragraphs 17, 18 & 19) to include
information about a dialogue exchange between codefendant Lyman and the state director of the
BLM, to include information about a tour that Mr. Lyman took of Recapture Canyon with a
BLM representative, and to include Mr. Lymans statement on a post in the defendants
Petroglyph blog.
Language was added to former paragraph 16 (now paragraph 22) stating that Defendants
Lyman and Wells both entered the closed area and traveled on the trail for a couple of miles to
the end of the Pipeline Road, then turned around per request of Mr. Lymans defense counsel.
Information was added to the same paragraph, per request of the government, that BLM Rangers
were present at the ride and took pictures of several riders, including the defendants.
A sentence was removed from former paragraph 17 (new paragraph 23, which had discussed
archeological and riparian damages.
The restitution amount has been corrected in former paragraph 20 (now paragraph 26).
Former paragraph 45 (now paragraph 51) was corrected and expanded to include information
about the defendants family.
Information was added to former paragraph 51 (now paragraph 57) regarding the impact of the
defendants DUI convictions on his career aspirations.
Former paragraph 52 (now paragraph 58) was corrected with the defendants proper college
major and emphasized area of study.
Former paragraph 55 (now paragraph 61) was updated to reflect the defendants current financial
status.
The statutory maximum fine amount was corrected in paragraph 73 (formerly paragraph 67) per
request of defendant Wells counsel.
The restitution amount was updated in former paragraph 72 (now paragraph 78).
NATHAN A. CRANE (Bar No. 10165)

SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, Eleventh Floor
Post Office Box 45000
Telephone: (801) 521-9000
Fax No.: (801) 363-0400
Attorney for Monte Wells
DISTRICT OF UTAH, CENTRAL DIVISION
NOTICE OF FILING OF LETTERS IN

SUPPORT OF MONTE WELLS
Plaintiff,
v.
Case No. 2:14CR00470
MONTE JEROME WELLS,
Judge David Nuffer
Defendant.
Defendant Monte Wells, by and through undersigned counsel, hereby files the attached
letters in support of Mr. Wells for purposes of the Sentencing Hearing scheduled for
December 18, 2015. The letters are attached as Exhibit A. Some of the letters are
addressed to Judge Shelby as the letters were obtained prior to Judge Shelbys recusal.
///
///
///
Mr. Wells would request that this Court accept those letters as if they were directed to the
appropriate sentencing judge.
DATED this 7th day of December, 2015.
By:
/s/ Nathan A. Crane

Nathan A. Crane
CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of December, 2015, a true copy of the foregoing
NOTICE OF FILING OF LETTERS IN SUPPORT OF MONTE WELLS was served by
the method indicated below, to the following:
Jared Bennett
Lake Dishman
Suite 300
185 South State Street
( ) U.S. Mail, Postage Prepaid

( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(X) Electronic Filing
/s/ MKuroski
Legal Assistant
3488876
Ecug!3<25.et.11581.FP.GLH!!!Fqewogpv!351.2!!!Hkngf!23018026!!!Rcig!2!qh!22
GZJKDKV!C
Ecug!3<25.et.11581.FP.GLH!!!Fqewogpv!351.2!!!Hkngf!23018026!!!Rcig!;!qh!22
NATHAN A. CRANE (UT Bar No. 10165)

10 Exchange Place, 11th Floor
Telephone: (801) 521-9000
Facsimile: (801) 363-0400
E-mail: nac@scmlaw.com
Attorney for Defendant Monte Wells

DISTRICT OF UTAH, CENTRAL DIVISION

Plaintiff,
MONTE WELLS POSITION OF PARTY

WITH RESPECT TO SENTENCING
FACTORS
v.
Case No. 2:14-CR-470
MONTE JEROME WELLS,
Judge David Nuffer
Defendant.
I.
INTRODUCTION
Throughout his life Monte has been drawn to public service. Monte Wells has
spent his life in the service of others, his community, and his country. During his career
Monte has served as an Agent with the U.S. Border Patrol, an Inspector with the U.S.
Customs, a Marshal with Aida County, Idaho, a Reserve Deputy Sheriff in Jefferson
County Idaho, and as a police officer in Cortez, Colorado.
Monte is the proud father of 6 children ranging in ages from 11 years old to 22
years old. In 2003 Monte and his wife made the decision to move to Monticello, Utah to
raise their 6 children. The Wells liked the idea of raising their children in a small
community away from the problems typical of bigger cities.
In Monticello, Utah Monte has continued to serve his community. Monte is an
active volunteer with the San Juan County Search and Rescue team. While serving on
the San Juan County Search and Rescue team Monte was appointed the North
Commander and served as a medic and EMT. Monte volunteers his time with the Boy
Scouts of America assisting the local boys in earning merit badges and participating in
camping trips at various locations in San Juan County. Monte enjoys teaching the boys
about the great wilderness areas in San Juan County.
Monte also volunteers his time
with his local church.

Most recently, in September 2014, Monte was appointed to be on Monticellos
City Council. Monte has loved being a member of the City Council. Monte has enjoyed
getting to know the issues the City faces and has worked tirelessly to help make
Monticello a great place to live.
This ordeal has been very trying to Monte and his family. San Juan County is a
small community. In a small community misdeeds are amplified because everyone
knows everyone.
Monte is 51 years old. He suffers from several significant health problems.

Within the past 8 months Monte has had back surgery. Even with the surgery Monte
continues to suffer from back and leg pain. Often when walking Montes leg goes
completely numb.
We would be remiss to take Montes present misdemeanor criminal trespass
conviction as a reflection of his total worth and life. Monte is a loving and caring father
who is devoted to his community. While the government pursued this case as if it were a
serious felony, it is important to remember that this is a simple trespass. Monte drove his
ATV on an existing and maintained dirt road and was convicted of a misdemeanor
offense for his actions. Monte understands and accepts that actions have consequences.
Understanding Montes past and his family are important factors when
determining the appropriate punishment set forth in the advisory United States
Sentencing Guidelines (U.S.S.G.) and the proscribed goals pursuant to 18 U.S.C.
3553(a).
II.
PROBATION AND RESTITUTION IS THE APPROPRIATE SENTENCE

Montes case presents a unique opportunity for the Court to fashion an
individualized sentence that will satisfy the demands of justice and provide a deterrent
effect on others. The sentencing judge is in a superior position to find facts and judge
their import under 3553(a) in the individual case.1
The Guidelines calculation is merely one of several factors to consider under 18
U.S.C. 3553(a). The Court of Appeals reviews sentences for abuse of discretion and
does not presume that the Guideline calculation is reasonable.2
The Court may also consider the history and characteristics of the defendant, the
need for the sentence imposed to reflect the seriousness of the offense, the need to afford
adequate deterrence to criminal conduct, and the need to avoid sentencing disparities
amongst co-defendants convicted of similar conduct. 18 U.S.C. 3553(a). Indeed, under
18 U.S.C. 3553(a), courts are required to sentence below the advisory Guideline range
if such a sentence would be sufficient to achieve the purposes of punishment.
In United States v. Gall, the Supreme Court made clear that judges are obligated to
consider all relevant factors relating to the nature and circumstances of the offense and
history and characteristics of the offender.3 Every sentencing decision involves its own
set of facts and circumstances regarding the offense and the offender.4
United States v. Edwards, 595 F.3d 1004, 1015 (9th Cir. 2010) citing Gall v. United States, 552
U.S. 586, 597 (2007).
2
See e.g., Gall v. United States, 552 U.S. 38, 41 (2007).
3
Gall, 552 U.S. at 50 (upholding a sentence of probation in a drug-dealing case where the
Guidelines range was 30 to 37 months).
4
United States. v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).
4
Former Attorney General Eric Holder, while serving as Attorney General,

advocated for alternatives to incarceration: I think there are too many people in jail for
too long and for not necessarily good reasons.5
In the 2013 annual report to the United States Sentencing Commission, the United
States Department of Justice advocated pragmatism in sentencing recognizing that (1)
budgets are finite; (2) imprisonment is a power that should be exercised sparingly and
only as necessary; and (3) . . . reducing reoffending and promoting effective reentry are
also core goals that can be successfully achieved and must be included in an effective
sentencing and corrections framework.6
The Sentencing Guidelines give Monte an offense level of 4 which places him in
Zone A with a recommended sentence of 0-6 months. The fact that Monte exercised his
constitutional right to proceed to a jury trial should not be held against him. If Monte
would have pled to one of the counts charged, as offered in pre-trial negotiations, he
would have started at an offense level of 4 and would have received a 2 level reduction
for acceptance of responsibility for a final offense level of 2. See U.S.S.G. 3E1.1.
Under an offense level of 2 Monte would have been in Zone A of the Sentencing Table
and would have had a recommended sentence of 0-6 months. Under the Sentencing
5
U.S. Attorney General Eric Holder in an interview with NPR, May 14, 2013,5 available at
http://www.npr.org/2013/08/07/209253516/with-holder-in-the-lead-sentencing-reform-gainsmomentum; available in appendix.
6
Letter from Jonathan J. Wroblewski, Director Office of Policy and Legis. U.S. Dept of Justice,
to the Honorable Patti B. Saris, Chair U.S. Sentencing Commission, (July 11, 2013), available at
http://www.justice.gov/criminal/foia/docs/2013annual-letter-final-071113.pdf.
5
Guidelines whether Monte pled guilty prior to trial or proceeded to trial, the sentencing
range under the Sentencing Guidelines would have been the same. Monte did not have
anything to lose by exercising his right to a trial.
A.
Sentencing Options
The goals of sentencing are to be a deterrent to the defendant and others, provide
the defendant with rehabilitation, and impose just punishment for the offense committed.
It is arguable that the goals of deterrence, rehabilitation, and punishment have largely
been achieved with the imposition of a large award of restitution.
The Court has significant flexibility to fashion a sentence which is fair and just
when considering all of the circumstances. This Court has the ability to impose a period
of probation.7 Under the Sentencing Table Montes offense falls within Zone A. The
Guidelines specifically authorize probation for offenses within Zone A.8 If the guideline
range is in Zone A of the Sentencing Table, a sentence of imprisonment is not required.9
On October 28, 2015 this Court ordered $95,955.61 in restitution to be awarded to
the government. Under the MVRA an order for restitution in a misdemeanor case can be
in lieu of, any other penalty authorized by law.10 An order to pay restitution as part of
18 U.S.C. 3561(a).
U.S.S.G. 5B1.1.
9
U.S.S.G. 5C1.1(b).
8
10
18 U.S.C. 3663A(a)(1).
6
a misdemeanor case is a criminal penalty meant to have deterrent and rehabilitative

effects.11
Monte is being sentenced for 2 misdemeanor convictions. An award of over
$95,000 in restitution is a significant penalty. As this Court is aware from Montes
PSR12, Montes monthly household income is greatly exceeded by the monthly expenses
for him, his wife, and their six children. The imposition of over $95,000 in restitution is
a significant and severe punishment imposed on Monte. For Monte, over $95,000 is a
crippling amount of money to owe the government.
The order of restitution is a
motivating reminder to Monte to not trespass on federal land. Imposing a period of

incarceration in addition to the large restitution award will not serve any additional
purpose.
If the Court feels that some period of incarceration is required, the period of
incarceration should be served as home confinement.
Home confinement may be
imposed by this Court pursuant to 18 U.S.C. 3563(b)(19). The Sentencing Guidelines

recommend that home confinement be imposed only as a substitute for imprisonment.13
However, given the totality of the circumstances and the large award of restitution a
sentence of probation with restitution is the appropriate sentence.
11
United States v. Ziskind, 471 F.3d 266, 270 (1st Cir. 2006).
PSR 61-62.
13
U.S.S.G. 5F1.3(c)(2); 5F1.2.
12
B. Disparate Sentences
One of the sentencing factors a Court must consider is the need to avoid a
disparate sentence with similarly situated individuals.14 Individuals that are similarly
situated to Monte are those that have committed a trespass offense with an off-road
vehicle on federal land. Sentencing Monte to probation is consistent with others similarly
situated.
In United States v. Brown, Dist. of Utah 2:11-cr-39 (2011) two defendants were
charged with Destruction of Property of the United States. In Brown, the two codefendants drove ATVs in Recapture Canyon creating new trails in the canyon. The
Brown defendants rode their ATVs in places where a trail did not previously exist and
where motorized vehicles had never traversed. The trial that was created in 2005 in
Recapture Canyon was not an existing road. There were some paths and ditches in that
end of the canyon, but the people who blazed the ATV trail in 2005 went over a lot of
area that had not previously had roads, and the path created significant damage to
multiple archeological sites.15
misdemeanor offense.
Both Brown defendants were convicted of a
One defendant in Brown was sentenced to pay $27,000 in
restitution, 12 months of supervised probation, no fine, and a special assessment of $25.16

The other defendant in Brown was sentenced to pay $8,000 in restitution, 24 months of
14
18 U.S.C. 3553(a)(6).
Lynell Schalk retired BLM special agent PSR 31.
16
(Brown dkt. 2).
15
supervised probation, no fine and a special assessment of $25.17 Both co-defendants in

Brown had their supervised probation terminated after six months.18
In United States v. Matei, 2007 WL 2079874 (E.D.N.C. 2007) the defendant
trespassed on federal land by driving his off-road vehicle on a national seashore. The
defendants actions endangered the lives of others as he was driving at a speed
dangerous for conditions, traveling in an erratic and serpentine manner through the ruts in
the sand causing spray of sand and danger to people on the beach.19 For his criminal
trespass the defendant was sentenced to pay a $100 fine and was not sentenced to any jail
or probation.
In United States v. Sams, 45 F.Supp.3d 524 (E.D.N.C. 2014) the defendant was
convicted, after a trial, of trespassing on federal land by driving his off-road vehicle in a
national wildlife refuge closed to motorized vehicles. The defendants off-road vehicle
caused vehicle tracks and the off-road vehicle damaged plants in the wildlife refuge. The
defendant was sentenced to pay a fine of $25 with no jail or probation.
In United States v. Jessop, D. Utah Case No. 06-cr-553 (2011) the defendant was
charged in Utah with Operating An Off-Road Vehicle on Federal Public Land Closed to
Off-Road Vehicle Travel in violation of 43 C.F.R. 8341.1(c) the same charge as the
instant matter. Defendant Jessop proceeded with a bench trial and was convicted. Mr.
17
(Brown dkt. 3).

(Brown dkt. 6-7).
19
United States v. Matei, 2007 WL 2079874, 2 (E.D.N.C. 2007).
18
Jessop was sentenced to 6 months of court supervised probation, given a $150 fine, and a
special assessment of $25.
The above cited cases are just a few examples of individuals trespassing on land
controlled by the federal government with an off-road vehicle. In Brown, Matei, Sams,
and Jessop each of the defendants were given a fine or restitution. Not one of the
defendants in the above cited cases was sentenced to jail or prison and the longest period
of probation served was 6 months. Similar to the defendants in the above cited cases, an
appropriate sentence that levies just punishment and avoids imposing a disparate sentence
is an order of restitution and a period of probation.
III.
OBJECTIONS TO PRESENTENCE REPORT

Monte does not have any objections to the Presentence Report. However, the
government has made two objections to the PSR in an attempt to almost triple Montes
Sentencing Guideline calculation.
The government asserts that 1) the applicable
guideline provision should 2X5.2 instead of 2B2.3, the section properly relied upon
by the U.S. Probation Office and 2) Monte should be given a 4 level enhancement for
being a leader organizer of the trespass offense. The U.S. Probation Office has used the
appropriate section of the U.S. Sentencing Guidelines and Monte was properly not
considered a leader/organizer by the U.S. Probation Office.
10
A.
The U.S. Probation Office Has Applied The Appropriate Guideline

Provision
The Presentence Report correctly applies 2B2.3 of the U.S. Sentencing

Guidelines. Monte was convicted of trespassing on BLM land with an ATV in violation
of 43 C.F.R. 8341.1(c). The Appendix to the U.S. Sentencing Guidelines does not list
which section to apply for violations of 43 C.F.R. 8341.1(c). The Guidelines direct that
if a statutory provision [is] not listed in the Statutory Index, use the most analogous
guideline.20
The U.S. Probation Office appropriately applied 2B2.3 as the most
analogous guideline provision for charged trespass offense.

As noted by the U.S. Probation Office, in the addendum to the PSR, 2B2.3 is the
guideline provision that is applied for all other federal trespass offenses:
Computer Trespass (felony)
18 U.S.C. 1030(a)(7)
Trespass on a vessel or aircraft belong to 18 U.S.C. 1036

the U.S.,
Trespass on property owned by U.S,
Trespass in a secure area of an airport, or
secure area of a seaport
Trespass as stowaway in vessel or aircraft
18 U.S.C. 2199
Trespass at Crater Lake National Park
16 U.S.C. 123
16 U.S.C. 16
Trespass in restricted government building 18 U.S.C. 1752

or grounds (felony)
20
U.S.S.G. 1B1.2(a).
11
Trespass by breaking or opening fences on 18 U.S.C. 1857

government grounds
Demonstrating at a national cemetery
38 U.S.C. 2413
Trespass on U.S. Strategic Petroleum

Reserve Facilities
42 U.S.C. 7270b
Trespass on public lands that have been closed is similar to trespass in a

government building, trespass at a national cemetery, trespass at national parks, or
trespass at an airport or seaport. For each of these trespass offenses the appropriate
sentencing guideline is 2B2.3. By the governments logic trespassing in the desert of
Recapture Canyon should subject an individual to a hire Sentencing Guideline calculation
than one who trespasses at a secure airport or at a Strategic Petroleum Reserve Facility.
The government would also argue that trespassing in Recapture Canyon should have a
higher Sentencing Guideline calculation than trespassing in a secure government
building, a felony offense, such as the Pentagon, the CIA, or even the Department of
Justice.21 Such a conclusion is illogical.
The U.S. Sentencing Guidelines provide an appropriate section for the Trespass
offense in 2B2.3. The trespassing guideline at USSG 2B2.1 is most analogous and it
21
The addendum to the PSR notes that [t]his offense does not involve issues of national
security, it does not involve the obstruction of (or damage to) critical infrastructure, nor does it
involve a threat to the administration of justice or to national defense.
12
appears to be the appropriate guideline for the Court to use.22 The U.S. Probation Office
has correctly used the appropriate section of the Guidelines.
A.
Monte Was Not A Leader Or Organizer Of The Trespass
The government asserts that Monte should be given a 4 level enhancement under
3B1.1 for being an organizer or leader of the Trespass. To qualify for an adjustment
under this section, the defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.23 Such an enhancement is belied by the
facts of the case. Monte did not organize, lead, manager, or supervisor anyone that was
involved in the trespass. Monte simply did not have any decision making authority in
this case and he did not have nor did he exercise any degree of control or authority over
others. Mr. Lyman was the undisputed leader and organizer of the conspiracy and
May 10, 2014 illegal ride.24
On February 27, 2014 Commissioner Lyman held a town hall meeting, as the
elected public official, to discuss issues concerning the citizens in his district. At the
February 27, 2014 meeting the protest ride was, for the first time, discussed and the
decision was made to hold a protest ride in Recapture Canyon. At the town hall meeting
on February 27, 2014 Commissioner Lyman set the date of protest for May 8, 2014.25
Monte did not attend and did not participate in the February 27, 2014 town hall meeting
22
Addendum to PSR at 2.
U.S.S.G. 3B1.1 Application Note 1.
24
Gov. Position Statement on Sentencing (Dkt. 182) at 12.
25
Gov. Trial Ex. 35C
23
13
where the protest ride was first discussed and where the date for the protest ride of set.
At the time of the town hall meeting Monte was on the other side of the city attending the
San Juan Health Service District Board Meeting.26
Commissioner Lymans decision to hold a protest rally in Recapture Canyon was
big news in San Juan County. This was the biggest news in the County since dozens of
armed federal agents swept into Blanding, Utah on June 10, 2009 raiding homes
suspected of illegally possessing American Indian artifacts. The PetroGlyph followed
news of the protest just like every major media outlet in Utah.
Between February 27, 2014 and May 10, 2014 the PetroGlyph published 3 articles
concerning the protest rally.27 Monte published the first article about the protest ride 62
days after the event had been planned and a date had been set for the protest. Of the 3
articles that were published in the PetroGlyph prior to May 10, 2014, Monte only
authored one of the articles. The other two articles were authored by Commissioner
Lyman. By comparison, and as just one example, the Deseret News published 3 articles28
prior to the protest ride one of which was authored by Commissioner Lyman. In fact, the
Deseret News published its first article about the protest ride on April 17, 2014, 12 days
before The PetroGlyph published its first article.
26
San Juan Health Service District Board Meeting Sign-In Sheet attached as Ex. A.
Articles were published on April 29, 2014 (Gov. Trial Ex. 73), May 6, 2014 (Gov. Trial Ex.
74), and May 7, 2014 (Gov. Trial Ex. 105).
28
Gov. proposed trial Ex. 43; Gov. Trial Ex. 103A; http://www.sltrib.com/sltrib/news/5782729578/blm-canyon-lyman-motorized.html.csp
27
14
Monte was a news reporter reporting the news in San Juan County. The jury felt
that Montes reporting made him a member of the conspiracy but the jury verdict does
not mean that Monte was a leader or organizer of the protest ride. Reporting about an
event is very different from actively organizing and leading the event.
Before the protest ride took place there was a protest rally held on the evening of
May 9, 2014 and the morning of May 10, 2014. At each protest rally crowds gathered to
hear from various speakers. Commissioner Lyman addressed the crowds at both rallies.
Most tellingly is that Monte never addressed the crowds that had gathered on May 9,
2014 and the morning of May 10, 2014.
Monte did not write letters or emails to BLM and other government officials about
the event. Monte never held a town hall meeting to discuss the event. Monte never
discussed the protest ride at a San Juan County Commissioners meeting. Monte never
sought to have editorials published about the protest ride with the Deseret News or any
other media outlet.
Put simply if Monte was never involved in the protest or withdrew from the
protest ride before it happened, the ride still would have gone forward. If Commissioner
Lyman was never involved in the protest or withdrew from the protest ride before it
happened, the ride would not have occurred. Monte was not in public office and was
15
not a public figure.29 Monte was not a leader or organizer of the event. The U.S.
Probation Office has correctly concluded that Montes actions do not meet the criteria for
the enhancement in 3B1.1.
IV.
RESTITUTION SHOULD BE JOINT AND SEVERAL

This Court has previously found that restitution in the amount of $95,955.61 is
owed to the BLM. This restitution amount should be ordered to be joint and severable
between Commissioner Lyman and Monte. The large order of restitution should be
imposed in lieu of any additional penalty.
IV.
CONCLUSION
Recidivism is low as Monte is over fifty years old, he has never been convicted of
a felony, he is employed, and he has family support. The heartache, pain, and financial
strain this criminal case has placed on Monte and his family has been, and will be, a
significant deterrent on Monte.
Others will look to the significant costs, including
emotional and financial, that Monte has bore and will be deterred from similar conduct.
A sentence of probation and an order of restitution in the amount of $95,955.61 is
a sentence that reflects the seriousness of the offense, effectively serves a deterrent effect
on Monte and on would be law breakers, and it achieves the goals and objectives of 18
U.S.C. 3553(a). This sentence takes into account Montes past and family including
lack of criminal history, it is consistent with other similarly situated individuals who have
29
Addendum to PSR at 3.
16
been convicted of trespassing offenses, and it takes into account the large award of
restitution. To sentence Monte to more than what is required for rehabilitation and to
achieve just punishment makes little sense and would not be in keeping with the notion of
a sentence sufficient, but not greater than necessary30
By:
30
18 U.S.C. 3553(a).
17
/s/ Nathan A. Crane

NATHAN A. CRANE
Attorney for Defendant
MONTE WELLS POSITION OF PARTY WITH RESPECT TO SENTENCING
FACTORS was electronically filed with the Clerk of the Court using the CM/ECF System to the
following:
Jared Bennett
Lake Dishman
U.S. Attorneys Office
185 South State Street, Ste. 300
/s/ MKuroski
3295959
18
GZJKDKV!C
PETER STIRBA (Bar No. 3118)

JULIA D. KYTE (Bar No. 13113)
JEFFREY D. MANN (Bar No. 13795)
STIRBA, P.C.
215 S. State St., Suite 750
P.O. Box 810
Salt Lake City, Utah 84110-0810
Telephone: (801) 364-8300
Facsimile: (801) 364-8355
E-Mail: jmann@stirba.com
Attorneys for Defendant Phillip Kay Lyman

Plaintiff,
DEFENDANT PHILLIP KAY LYMANS

OBJECTIONS TO THE PRESENTENCE
INVESTIGATION REPORT
v.
Case No. 2:14-CR-00470-RJS
PHILLIP KAY LYMAN,
Judge David Nuffer
Defendant.
Defendant Phillip Kay Lyman (Mr. Lyman), by and through the undersigned counsel of
record, hereby files his Objections to the Presentence Investigation Report in conjunction with
his Sentencing Memorandum filed concurrently herewith.
I.
BASE OFFENSE LEVEL

Under the Guidelines, the base offense level for Mr. Lymans conspiracy conviction is
the same as the base offense level for the substantive offense. U.S. SENTENCING GUIDELINES
MANUAL (USSG) 2X1.1 (2015). The substantive offense of operating an off-road vehicle in
the area in Recapture Canyon closed to off-road vehicles is a violation of 43 U.S.C. 1733(a).
The Presentence Report (PSR) correctly identifies this as a base offense level 4, pursuant to
3B2.3 for Trespass, and Mr. Lyman does not object to that determination. However, the
Government previously objected to the PSRs base offense level determination and argued that
the base offense level should be a level 6.1 Accordingly, Mr. Lyman would like to take this
opportunity to respond.
The Governments position is not based on an argument that Mr. Lymans offense of
conviction was any more serious than any other federal trespassing offense. Indeed, such an
argument would be unreasonable as it does not involve issues of national security, obstruction or
(or damage to) critical infrastructure, or a threat to the administration of justice or national
defense.2 In fact, his trespass was only with respect to the form of transportation he chose to use
in the canyon, which was freely open to anyone by other means of transportation.3
The Governments position is based solely on an unsupported interpretation of the use of
parentheses in the Guidelines Appendix A by which 2B2.3 for trespass only applies to
violations of 18 U.S.C. 1733(a) if the defendant also violated 43 C.F.R. 4140.1(b)(1)(i).4
Thus, the Government concludes, Mr. Lymans specific act of trespass is not included in the
Appendix and therefore 2X1.1 applies to a conviction of a Class A Misdemeanor not otherwise
covered by a specific offense guideline.5 Mr. Lyman disputes the Governments interpretation of
the Appendix. Nowhere do the Guidelines explain that parentheses are to be interpreted so
narrowly, and the Government provides no such reference. Instead, the Guidelines instruct to
United States Position Statement on Sentencing (Gov.s Position), D.E. 182, at 1012.
See Addendum to Mr. Lymans Presentence Report (Addendum), D.E. 238-1, at 12.
3
See id.
4
Gov.s Position. at 1112; see USSG Appx A at 564.
5
Gov.s Position. at 1112.
2
always use the most analogous guideline, which in this case is clearly 2B2.3 for trespass.
Thus, the appropriate base offense level is level 4. USSG 1B1.2.6
II.
MR. LYMAN OBJECTS TO THE TWO-LEVEL INCREASE FOR ABUSE OF

POSITION OF TRUST
Mr. Lyman renews his objection7 to the PSRs increase of 2 levels for abuse of position
of trust.8 This provision states: If the defendant abused a position of public or private trust, or
used a special skill, in a manner that significantly facilitated the commission or concealment of
the offense, increase by 2 levels. USSG 3B1.3. Before imposing this enhancement, a district
court must find two things: (1) the defendant possessed a position of trust; and (2) the defendant
abused the position to significantly facilitate the commission or concealment of the offense.
United States v. Guidry, 199 F.3d 1150, 1159 (10th Cir. 1999)
Case law in the Tenth Circuit clearly states the position of trust must be found in relation
to the victim of the offense: The question of whether an individual occupied a position of trust is
evaluated from the victims perspective. Id. at 1160 (quoting United States v. Trammell, 133
F.3d 1343, 1355 (10th Cir. 1998)); see United States v. Jolly, 103 F.3d 46, 4850 (2d Cir. 1996)
(the abuse of trust enhancement applies only where the defendant has abused discretionary
authority entrusted to the defendant by the victim). In Guidry, 199 F.3d at 1160, the defendant
was convicted of filing false tax returns, but the Tenth Circuit held that the adjustment did not
apply because the defendant did not occupy a position of trust vis--vis the government, the
See Addendum at 12 (In this case, the trespassing guideline at USSG 2B2.3 is most
analogous and it appears to be the appropriate guideline for the Court to use.)
7
Position of Defendant Phillip Kay Lyman With Respect To Sentencing Factors (Lymans
Position), D.E. 181, at 23; see Addendum at 23.
8
Presentence Investigation Report for Defendant Phillip Kay Lyman (PSR), D.E. 238, at
39.
3
victim in this case. See also United States v. May, 568 F.3d 597, 60304 (6th Cir. 2009)
(holding in tax evasion case that there is not an abuse of trust at all because May was not in a
position of trust relative to the IRS).
It is undisputed that the victim in this case is the United States, to whom Mr. Lyman has
been ordered to pay restitution. No other victims have been identified. Mr. Lyman is not
employed by the United States and his position as a county commissioner is not a position of
trust vis--vis the United States. See Guidry, 199 F.3d at 115960.
The PSR claims that because the BLM manages public lands, the public is also a victim
and Mr. Lyman had a position of trust relative to the public of San Juan County.9 However, Mr.
Lymans conviction had nothing to do with the discretionary authority given to him as County
Commissioner. His position as County Commissioner gives him no discretion over the BLMs
management of public lands that he could abuse. Under that logic, the courts in Guidry and May
would have held that tax evasion is an abuse of a position of trust owed to the American public
to pay taxes because the IRS manages taxes, which are used for public purposes. And for that
matter, every crime would be an abuse of trust that each person owes to everyone else to obey
the law. This stretches the enhancement beyond its intended purpose.
In addition, the enhancement does not apply because [t]he primary concern of 3B1.3 is
to penalize defendants who take advantage of a position that provides them freedom to commit
or conceal a difficult-to-detect wrong. United States v. Koehn, 74 F.3d 199, 201 (10th Cir.
1996). The Guidelines contains examples, such as, the case of an embezzlement of a clients
funds by an attorney serving as a guardian, a bank executives fraudulent loan scheme, or the
9
Addendum at 3; see also Gov.s Position at 14 (Mr. Lyman used his position as a San Juan
County Commissioner to significantly facilitate the illegal ride.).
4
criminal sexual abuse of a patient by a physician under the guise of an examination. USSG
3B1.3, cmt. n. 1. Mr. Lymans conduct does not fit this adjustment. Mr. Lymans position did not
provide him freedom to commit or conceal a difficult-to-detect wrong. He openly told the
BLM that he was planning to ride into the canyon and attempted to reach an agreement to make
the ride legal. Perhaps if Mr. Lyman had been convicted of using his position as County
Commissioner to embezzle county funds, or if he were a BLM official charged with violating the
trust given to him to protect the public lands, this adjustment would apply. But in the present
case, Mr. Lyman did not have a position of trust in relation to the victim of the offense, nor did
he abuse such a position as contemplated by the Guidelines.
III.
MR. LYMAN OBJECTS TO THE 4-LEVEL INCREASE FOR ACTING AS AN

ORGANIZER OR LEADER OF AN EXTENSIVE CRIMINAL ENTERPRISE
Mr. Lyman also renews his objection10 to the PSRs increase of 4 levels for acting as an
organizer or leader.11 The Guidelines add four levels if the defendant was an organizer or leader
of a criminal activity that involved five or more participants or was otherwise extensive. USSG
3B1.1. Relevant factors related to this enhancement include not only whether the defendant
exercise[d] decision making authority and the degree of control and authority exercised over
others, but also the nature and scope of the illegal activities. USSG 3B1.1, cmt. n. 4.
Mr. Lyman had little control or decision making authority, as evidenced by the rally
video wherein he attempted to convince the participants not to go through with the ride, but was
pressured into going forward, and several individuals ignored his admonition to stay only on the
Pipeline Road. In fact, only two individuals were convicted of conspiracy, while two others were
10
11
Lymans Position at 35.

PSR at 40.
5
acquitted and another co-defendant had his charges dismissed, suggesting that the criminal
enterprise was merely a two-person conspiracy.
In addition, the nature and scope of the illegal activity is an important consideration.
USSG 3B1.1, cmt. n.4. This enhancement is generally used as additional punishment for
leaders of criminal organizations that conduct extensive illegal activities, such as large-scale
drug operations, money laundering, and other analogous criminal activities. See, e.g. United
States v. Bernaugh, 969 F.2d 858 (10th Cir. 1992); United States v. Brown, 944 F.2d 1377 (7th
Cir. 1991). Another factor of the claimed right to a larger share of the fruits of the crime also
denotes the type of crimes to which this enhancement is meant to apply. USSG 3B1.1, cmt.
n.4. Mr. Lymans conviction, while for a conspiracy, was in reality an open protest of
government action, not some nefarious criminal enterprise. It is hardly the type of criminal
conduct that the Guidelines intends to punish with a four-level increase doubling the base
offense level in this case simply because he was a leader of the protest.
CONCLUSION
For the foregoing reasons, Mr. Lyman respectfully requests that this Court determine that
based on a total offense level of 4 and a criminal history category I, the correct Guideline range
is zero to six months.
STIRBA, P.C.
By:
/s/ Jeffrey D. Mann
____
PETER STIRBA
JULIA D. KYTE
JEFFREY D. MANN
Attorneys for Defendant Phillip K. Lyman
6
DEFENDANT PHILLIP KAY LYMANS OBJECTIONS TO THE PRESENTENCE
INVESTIGATION REPORT was served by the method indicated below, to the following:
Jared C. Bennett, United States Attorney
John W. Huber, Assistant U.S. Attorney
Lake Dishman, Assistant U.S. Attorney
185 South State Street, Suite 300
john.huber@usdoj.gov

( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
Nathan A. Crane
SNOW CHRISTENSEN & MARTINEAU
nac@scmlaw.com

( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
/s/
Zachary B. Hoddy
Legal Assistant
PETER STIRBA (Bar No. 3118)

JULIA D. KYTE (Bar No. 13113)
JEFFREY D. MANN (Bar No. 13795)
STIRBA, P.C.
215 S. State St., Suite 750
P.O. Box 810
Salt Lake City, Utah 84110-0810
Telephone: (801) 364-8300
Facsimile: (801) 364-8355
E-Mail: jmann@stirba.com
Attorneys for Defendant Phillip Kay Lyman
DEFENDANT PHILLIP KAY LYMANS

SENTENCING MEMORANDUM
Plaintiff,
v.
Case No. 2:14-CR-00470-RJS
PHILLIP KAY LYMAN,
Judge David Nuffer
Defendant.
Defendant Phillip Kay Lyman (Mr. Lyman), by and through the undersigned counsel of
record, hereby files this Sentencing Memorandum. Mr. Lyman respectfully asks this Court to
impose a sentence of probation and community service, which will be sufficient, but not greater
than necessary, considering all the relevant sentencing factors and the facts and circumstances of
this case.
INTRODUCTION
For over eight years now, the citizens of San Juan County have waited for the U.S.
Bureau of Land Management (BLM) to open a temporary closure of Recapture Canyon to
Off-Highway Vehicles (OHVs). The purported purpose of the closure still has not been
realized. Despite the good-faith efforts of the County and its citizenry, the BLM has failed to
approve three separate applications for a right-of-way, failed to respond to requests for
information, and has continually acted contrary to law and its own internal policies concerning
temporary closures. The inaction of the BLM caused considerable frustration to a community
that treasures the land in which they are blessed to live.
Finally, after a string of broken promises and missed deadlines, a peaceful protest was
planned to put pressure on the BLM to comply with the law and reopen Recapture Canyon. As
County Commissioner, Phil Lyman opened lines of communication with BLM and other federal
officials in an effort to resolve this conflict and receive some modicum of progress. He spoke in
a calm and professional manner with these federal officials, who were sympathetic, but
ultimately unyielding to requests to open the canyon or grant permission for a protest ride.
Subsequently, Mr. Lyman, and other citizens of San Juan County, drove OHVs across the
closure line, down one to two miles on a Pipeline Road used and maintained by the San Juan
County Water Conservancy District (with permission from the District),1 turned around, and
went home. There was no violence, no shouting, and no conflict of any kind. Mr. Lyman was
respectful and careful not to go further into the canyon near archeological and other sensitive
areas. Most of the participating citizens of San Juan County believed the protest to be in the
See Testimony of Ferd Johnson, Trial Tr. Apr. 30, 2015, 36566, Attachment A.
2
finest traditions of our Country that considers peaceful protest and public demonstration a basic
right.
For this simple act of driving an OHV down a road that had been used for OHV travel for
many years prior to temporary closure, and is still used for hiking, horseback riding, and cattle
grazing, and that is routinely traveled on by large water conservancy vehicles to maintain the
pipeline, Mr. Lyman has been vigorously prosecuted, convicted, publicly embarrassed and
ridiculed, and has suffered significant financial repercussions, including a restitution amount of
nearly $96,000. Mr. Lyman recognizes that he should have exercised greater restraint and
patience with the BLM, rather than engaging in a protest. He has already been severely penalized
for his actions far beyond what he ever imagined. Mr. Lyman is not the type of defendant, and
his offense is not the type of crime, that warrants a sentence of incarceration.
Considering the nature and circumstances of his offense, Mr. Lymans lack of criminal
history, his standing in the community, and the other mandatory sentencing factors, Mr. Lyman
respectfully requests that he be sentenced to a term of probation and community service.
FACTUAL AND PROCEDURAL BACKGROUND
1.
On February 27, 2014, Mr. Lyman, in his official capacity as County
Commissioner, held a town hall meeting in Blanding, San Juan County, Utah to discuss various
land issues. One issue of great importance to the citizens of San Juan County that was discussed
at the meeting was the BLMs closure of Recapture Canyon to OHVs.2
2.
Portions of Recapture Canyon had been temporarily closed to OHVs since
2007, supposedly to make repairs from damage resulting from illegal construction of trails.
2
See Presentence Investigation Report for Defendant Phillip Kay Lyman (PSR), D.E. 238, at
11.
3
These portions of the canyon were still open for use by individuals on foot or horseback, for
grazing cattle, and a one to two-mile stretch of road was a San Juan Water Conservancy District
right-of-way used since 1987 to install and maintain a water pipeline (Pipeline Road). Prior to
the closure, the trails in the canyon were open freely to OHV travel and had been used by
citizens of San Juan County for generations.3
3.
The temporary closure, pursuant to BLM policies, was intended to last only for
as long as necessary to remediate the problem, but in any event, no more than two years.4 But by
early 2014, it had been closed for close to seven years with no end in sight. During that time, San
Juan County had filed three formal applications to the BLM for right-of-ways and made several
requests to reopen the canyon. After years of delays, broken promises, and being ignored, the
people of San Juan County were extremely frustrated with the BLM.
4.
At the town hall meeting, on February 27, 2014, someone suggested that the
people participate in a protest ride in or around the closed area of Recapture Canyon. Although
Mr. Lyman does not even own an OHV, he pursued the idea on behalf of his constituents.
5.
On March 2, 2014, Mr. Lyman emailed Juan Palma, who was the State Director
of the BLM at the time, regarding the substance of the town hall meeting: We have endured one
broken promise after another regarding the trail in Recapture Canyon. The delays are systematic
and are more consistent with despotism than with government by, for, and of the people.
Collectively, we are ready to take action. My hope, indeed my prayer, is that the BLM will
3
4
See id. at 58.

See Internal BLM Memoranda Instruction, Attachment B.
4
recognize the sincerity of our people and actually do something to wrap this up and make this a
legal rather than an illegal movement.5
6.
In addition, Mr. Lyman told Mr. Palma that the citizens of San Juan County were
eager to provide community service to perform trail maintenance and place signs or barriers to
protect the area from damage.6
7.
Over the next two months, Mr. Lyman had several polite and professional
communications with Mr. Palma and other BLM officials, including emails, letters, telephone
conversations, and in-person meetings, to try to negotiate a way for BLM to end the temporary
closure, grant permission for the protest ride, and/or provide direction so that the protest would
not harm any sensitive areas of the canyon.
8.
For example, shortly after the town hall meeting, Mr. Lyman called Don
Hoffheins, the BLM Monticello Field Manager, to inform him of the plans so as not to surprise
the BLM and use the protest as an invitation to BLM to communicate with those who are most
harmed by the closure . . . .7
9.
On March 27, 2014, Mr. Lyman met with Mr. Palma to see if the BLM was able
to give even a small token of sincerity in relation to the process which began 7 years earlier and
told him that if he would just have local BLM mark the proposed reroute that Mr. Lyman
would attempt to call off the excursion.8
10.
Further, in a letter of April 29, 2014, to Lance Porter, Canyon Country District
Manager for the U.S. Department of the Interior, Mr. Lyman wrote: the last thing we want to do
5
Gov. Tr. Ex. 23-1.

Id. at 23-12.
7
See Gov. Tr. Ex. 24-3.
8
See id. at 24-23.
6
is willfully damage any archaeology and that we were very willing to do what we could to avoid
those places all together or to mitigate what the BLM might consider damage. Even to this day
we have been unable to get any cooperation from the BLM in this respect.9
11.
On April 28, 2014, Mr. Lyman met with the other San Juan County
Commissioners, as well as Mr. Porter and Mr. Hoffheins to discuss and coordinate the protest
ride so that it could be done in the safest and most peaceful manner.10
12.
Mr. Palma was sympathetic to the frustrations of Mr. Lyman and the people of
San Juan County and told Mr. Lyman as much in a telephone conversation. Mr. Palma also told
Mr. Lyman Nobodys gonna get arrested, and nobodys gonna do that kind of stuff, were not
gonna do that.11 Mr. Palma also told Mr. Lyman in the May 1, 2014 conversation to go have
your celebration, [referring to the ride] I think that would be wonderful.12
13.
In that conversation Mr. Palma also told Mr. Lyman, And you absolutely have
every right to feel the way you feel, to believe the way you believe, absolutely. And I -- and Im
not that far off from where you are. Im really not that far off from where you are . . . . I cannot
change the past, I just cant Phil. Theres nothing I can do, whatever happened in the late 80s, or
whenever all this stuff happened. But I can make some change, you know. Nobodys gonna get
arrested, and nobodys gonna do that kind of stuff, were not gonna do that. And I can change
that, you know, because Im here now in Utah. Because I do have an affinity to both a committed
heritage that you have, which I do not have, but Ive been adopted into it. But you certainly can
9
Id. at 24-3.
Gov. Tr. Ex. 33-1.
11
See PSR at 16.
12
Transcript of Phone Conversation Between Phillip Kay Lyman and Juan Palma at 1516,
Attachment C (emphasis added).
10
feel it a lot more than I can, the affinity to that pioneering culture and spirit . . . . And Phil, I just
wanted to say that regardless of what you all decide to do on the 10th, I hope it is as you
describe. You know, that you can have your celebration, and then you can ride or walk down
into the canyon, that would be wonderful.13
14.
On May 6, 2014, a few days before the scheduled protest ride, Mr. Lyman went
on a field trip with Mr. Porter through the closed area for the purpose of learning where not to
travel in order to avoid damage to archeological sites and other sensitive areas of the canyon and
to discuss proposed changes to the current trail which was the substance of the Countys
applications for a right-of-way.14
15.
On May 7, 2014, following the field trip, Mr. Lyman announced through Mr.
Wells Petroglyph website that he planned to ride only on the Pipeline Road in the closed part of
the canyon and then turn around, while informing others that [t]here are a lot of options for you
to be 100% part of this very needed protest without riding on any closed trails.15
16.
On the morning of May 10, 2014, a rally was held for the protest in a city park in
Blanding. At the rally, Mr. Lyman spoke about the purpose of the protest and the
communications he had with the BLM. During his speech, Mr. Lyman made statements that
showed he was reconsidering his decision to ride into the closed area of the canyon: I believe
this is the protest here, [referring just to the gathering] and I think weve sent a strong message . .
. I have no moral problem with crossing that [closure] line. But I believe itll cause more harm
than good to cross that line today. He even suggested that the ride be taken on the rim of the
13
Id. at 1416 (emphasis added).

PSR at 17.
15
Gov. Tr. Ex. 105-12 (emphasis added).
14
canyon, as opposed to actually riding in the canyon. Several individuals, however, pressured Mr.
Lyman to go forward with the ride, stating he was manifesting a language of weakness.16
17.
Eventually, Mr. Lyman agreed to go with the riders into the canyon, where he,
true to his word, stayed on the Pipeline Road and turned around.17
18.
For these actions, Mr. Lyman was convicted of two Class A Misdemeanors,
Operating Off-Road Vehicle on Public Lands Closed to Off-Road Vehicles and Conspiracy to do
the same,18 and has been ordered to pay restitution in the amount of $95,955.61,19 of which
$65,000 was for an assessment report provided to the BLM.
ARGUMENT
I.
CONSIDERATION OF THE RELEVANT SENTENCING FACTORS,

INCLUDING THE NATURE AND CIRCUMSTANCES OF THE OFFENSE AND
THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT JUSTIFIES
A SENTENCE OF PROBATION AND COMMUNITY SERVICE
It is uniform and constant in the federal judicial tradition for the sentencing judge to
consider every convicted person as an individual and every case as a unique study in the human
failings and to impose a sentence that is tailored to the facts and circumstances of each case.
Gall v. United States, 552 U.S. 38, 52 (2007) (quotations omitted). This requires a close
examination of the mandatory sentencing factors so that the sentence is sufficient, but not
greater than necessary to serve the purposes of sentencing. 18 U.S.C. 3553(a) (2015).
Accordingly, the Sentencing Guidelines are not mandatory, they are advisory only, and the
Supreme Court has declared that a sentencing court may not presume that a sentence within the
16
PSR at 20.
Id. at 2122
18
See D.E. 1, 41, & 149
19
D.E. 231.
17
Guidelines range is reasonable. Nelson v. United States, 555 U.S. 350, 352 (2009); Rita v. United
States, 551 U.S. 338, 351 (2007).
When sentencing a defendant, a court is obligated to engage in a three-step process. First,
the Court must correctly calculate the advisory Guideline range. Second, the Court must
determine whether any departures are appropriate. Finally, the court will consider all relevant
sentencing factors to come up with a reasonable sentence that is sufficient but not greater than
necessary. See Gall, 552 U.S. at 4950; 18 U.S.C. 3553(a); U.S. SENTENCING GUIDELINES
MANUAL (USSG) 1B1.1 (2015). Based on this analysis, Mr. Lyman respectfully asks that he
be sentenced to probation.
A.
The Appropriate Guideline Range
An appropriate calculation of the Guideline range includes an analysis of the base offense
level, followed by appropriate increases and/or decreases and a determination of the defendants
criminal history. Counsel has submitted Mr. Lymans objections to the presentence report in a
separate filing and incorporates those arguments here to calculate his Guideline Level. Mr.
Lymans position is that crimes of conviction constitute a base offense level 4 with no increases.
Assuming the Court makes no changes to the PSR score, Mr. Lymans Guideline Level is 10.
Mr. Lyman has a criminal history category of I.
B.
The Analysis Under 18 U.S.C. 3553(a)
After calculating the correct Guideline Range, a court must impose a sentence sufficient,
but not greater than necessary, in light of the relevant sentencing factors and explain the
sentence it imposes. 18 U.S.C. 3553(a); Gall, 552 U.S. at 4950. This last step is critical to
achieving the objectives that Congress intended by establishing a fair sentencing system with
honesty in sentencing, reasonable uniformity, and proportionality in light of the facts and
circumstances of each particular case. USSG ch. 1, pt. A(1)(3) (The Basic Approach).
The relevant sentencing factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the sentence imposed to
reflect the seriousness of the crime, to afford adequate deterrence to criminal conduct, to protect
the public from the defendant, and to provide the defendant with needed educational or
vocational training; (3) the need to avoid unwarranted sentencing disparities among similar
defendants and similar conduct; and (4) pertinent policy statements. 18 U.S.C. 3553(a).20
1.
The nature and circumstances of the offense and the history and
characteristics of the defendant.
The nature of the offense is not egregious criminal conduct. Mr. Lyman, in an act of
protest, and in a manner designed to avoid conflict and damage to sensitive areas, travelled on an
OHV into an area of Recapture Canyon closed to OHVs along a Pipeline Road, with permission
from the Water Conservancy District. The District holds a right of way and routinely travels on
the same road with much larger vehicles to maintain the pipeline. Mr. Lyman did not set out to
break the law or harm any parts of the canyon. He alerted BLM of his intentions and the reasons
for the ride and spent weeks trying to negotiate a peaceful protest that would allow him to go into
the canyon lawfully. Although the BLM refused to grant permission, he received assurances that
participants would not be arrested. However, the Water Conservancy District did grant him
permission to use its ROW as a road. While it is not clear as to precisely what Mr. Lyman
20
Other factors include the types of sentences and ranges available, and the needs for
restitution. Restitution has already been resolved. 18 U.S.C. 3553(a)(3), (4), and (7). Given the
mootness or limited applicability of these other factors, they are not addressed in this
memorandum.
10
thought at the time of the ride, he certainly could have reasonably believed his use was
permissive as long as he stayed on the Pipeline road, which he did. The San Juan County Sheriff
received assurance that the protest would be peaceful, no one would go to jail, and fines in the
hundreds of dollars would be the sanction.21
Mr. Lyman was not acting out of self-interest, but rather on behalf of the people of San
Juan County who were upset at the way the BLM had managed the closure of the canyon. He
represented the citizens of San Juan County, and he was acting as their representative.
Nevertheless, Mr. Lyman now fully realizes that his conduct was misguided. At the time,
he was caught up in the emotions and frustrations of the BLMs delays in reopening the canyon
and believed, along with other citizens of San Juan County, that the protest would send a
message and create action for the BLM that would expedite the reopening. It was hoped that
calling attention to the problem would be a catalyst for change. In hindsight, Mr. Lyman
recognizes that his actions have probably had the inverse effect and that he should have been
more diligent in dissuading the voices of the citizenry and communicated better with the BLM.22
Mr. Lyman is 51 years old and has no criminal history. He is the father of five children,
who he supports financially on an LDS mission and in college. He is a well-respected County
Commissioner and a CPA, contributes a great deal to his community, and has received an
outpouring of support as reflected in the many of letters written on his behalf. Examples of how
21
22
See Sheriff Letter, Attachment D.

See PSR at 34 (Lymans statement).
11
Mr. Lyman is perceived in his community are reflected by the following excerpts from some of
the letters the Court has received.23
Your Honor, Phil Lyman is a peaceful man. He is an asset to his community as a
commissioner, businessman, father and husband. Every day I drive by his home
and notice the American flag flying proudly. He cares about our wonderful
country and the citizens he represents.
Sheriff Rick Eldredge
Each of us is confident that Commissioner Lyman will not reoffend or be subject
to our criminal justice system ever again. He has done much good in his life for
his family, for his community and has represented all of the interests of San Juan
County in a respectful and conscientious way.
Commissioners Letter
I first met Phil Lyman back in May while visiting San Juan County with the
Governors Office of Economic Development. Based on the press coverage and
my personal biases on public land management, I expected Commissioner Lyman
to possess extremist views opposing all public land ownership. As we conversed
about the Countys economic opportunities and the problem of persistent poverty
in southeastern Utah, I was impressed that Commissioner Lyman is an openminded individual and cares deeply about San Juan Countys environment and the
people he serves.
Dave Conine, State Direct for the U.S.D.A
(Appointed by President Obama)
He is one of the most honest and sincere people I know . . . . I have talked with
many classmates and every one of them has expressed a great deal of admiration
and respect for Phil throughout Phils formative years until present. He has no
past as far as ever doing anything he wanted to hide . . . . Phil is heavily involved
in civic activities, donating time and money to improve circumstances in San Juan
County. He, along with his wife Jody, has been very active and involved in
education in the San Juan County School District. They have donated to
academics and extracurricular programs for many years. They support programs
within our schools, some of which their children were involved and many
programs that did not involve their children. Phil and Jody are examples to the
community in their support for excellence in education. Their five children have
23
Sheriff Letter, Attachment D; Conine, Shumway, Palmer, and Black Letters, Attachment E;
Commissioners Letter, Attachment F.
12
been positive examples and role models to their classmates in our schools here as
well.
Merri Shumway, San Juan Board of Education
I am 81 years old and have lived here all my life. When I was a child I drove
cattle from Verdure on the old road in through Recapture on the way to Blanding.
It was even an old road when I was a little boy. In this county there are many old
roads that have been used and have been valuable for many, many years. I love
this country and have no desire to destroy any part of this country . . . . I have
known Phil Lyman all of his life and there is no better man anywhere than Phil
Lyman.
William Ellis Palmer
I have known Commissioner Lyman since his birth. I would place him in the top
1% of men I know who are honest, solid citizens and willing to give to others.
Pete M. Black
A sentence of prison would have detrimental effects on his family, as his wife is not
employed, and on the community, as hundreds of businesses use Mr. Lymans CPA business for
the tax and financial needs. Incarceration would serve no useful purpose.
2.
The need for the sentence imposed to reflect the seriousness of the
conduct, afford adequate deterrence, and protect the public.
Mr. Lymans convictions are for misdemeanors. He was not violent and he did not hurt
anyone. He purposefully attempted to avoid damage by communicating with the BLM, going on
a field trip to be aware of archeological sites, and remaining on the Pipeline Road. The only
damage that resulted from his crime was actually caused by people who did not listen to his
admonitions to stay on the Pipeline Road, and he has been ordered to compensate for that
13
damage through a restitution order. A prison sentence would not be proportionate to the gravity
of the offense it would far exceed it.24
While deterrence is a consideration, it is clear that Mr. Lyman is never going to reoffend.
Other public officials have received the correct message as well. Thirty-two (32) County
Commissioners, representing nineteen (19) counties, signed a letter of support for fellow
Commissioner Lyman. As part of that letter it is stated:
[W]e want to express our recognition of the clear impact that has been felt
through his conviction and the large amount of restitution clearly ordered. While
we are simply public servants trying to represent the concerns of our citizens, we
understand now that conflict with the Federal Government can have devastating
personal repercussions, such as has been experienced by Commissioner Lyman.25
Moreover, one of the reasons for incarceration is concern for public safety; Mr. Lyman is
no threat to the public.26 There is absolutely no history of violence or threatening behavior in his
24
Of some relevance is that under Utahs Adult Sentencing and Release Guidelines,
misdemeanor trespass with no prior criminal history requires the court to impose probation. See
Form 5A- Misdemeanor Matrix.
25
Commissioners Letter, Attachment F.
26
It has been alleged in a letter submitted to the Court by Rose Chilcoat of the Great Old
Broads for Wilderness that Mr. Lymans actions were far more egregious than they actually
were. For example, Ms. Chilcoat falsely accuses Mr. Lyman of being involved in making threats
to the GOBW members and others, attempting to stir up violence over the Recapture Canyon
issues, post[ing] an invitation on the Bundy Ranch Facebook page knowing that such an
invitation to Bundy supporters could attract self-proclaimed militias and others who would bring
weapons to present a threatening presence, and otherwise intimidating and bullying those who
oppose his view. Ms. Chilcoats perspective is decidedly biased, downright false and thoroughly
malicious. Mr. Lyman has never made threats to any members of the GOBW or anyone else
related to the protested issues and he did not post an invitation on the Bundy Ranch Facebook, as
Governments Trial Exhibit 42, makes clear. Mr. Lyman has been extremely respectful during
the entirety of the time leading up to and through the protest. He openly discussed the protest
with Mr. Palma and other BLM officials; he agreed to a field trip to be aware of protected
archeological sites; he encouraged others to act peacefully, and stayed only on the Pipeline Road.
Further, not once during the pre-ride rally did Mr. Lyman raise his voice or seek engage in
violent or hateful rhetoric. To the contrary, Mr. Lyman was calm and composed with a tone that
expressed frustration with the BLM and a desire to protect the rights and freedoms of the people
14
entire background. He has lived an exemplary life, contributed positively to his church and
community, and has maintained loving, stable, family relationships. He has been married for
over twenty-nine (29) years to his wife Jody, and he has five (5) adult children. Two (2) of which
are in medical school and one (1) is currently serving a church mission. His family settled in San
Juan County in the 1880s and Mr. Lyman, as a result, has a deep and abiding commitment to the
quality of the life in his County and the preservation of its natural beauty and its ancient history.
There is no existing groundswell to repeat Mr. Lymans actions. Mr. Lyman now realizes
that repetition of his behavior will only be counterproductive. The Court ordered restitution sent
a very strong message. The fact of the matter is that this is just one of the very crippling financial
consequences visited upon Mr. Lyman.
His intent was never to simply violate the law or exacerbate tensions with the BLM. He
wanted to have a peaceful protest ride, hopefully with the blessing of the BLM. Its purpose was
to make progress towards the reopening of Recaputre Canyon, which had been closed for almost
7 years, and is still closed. The ride was peaceful, but the reaction was not what he had expected.
Hindsight is always 20/20, but at the time of his ride, he was not discouraged by the State
Director, but encouraged when he was told this ride would be wonderful. Furthermore, Sheriff
Eldridge was informed by the current U.S. Attorney that no one would go to jail and the fines
would be in the hundreds of dollars. The Sheriff states in his letter to the Court as follows:
[J]ust days prior to the protest ride, I contacted John Huber by phone. Mr. Huber
was very polite and accommodating to my questions concerning the prosecution
of those that road ATVs on the closed trail. Mr. Huber told me that the fines
would be in the hundreds of dollars and that there would not be any jail time.
However, Mr. Huber understandably could not guess what could happen with
of San Juan County. Ms. Chilcoats allegations are false, self-serving, prejudiced, and spiteful
and should be entirely disregarded by the Court.
15
restitution issues if it was found that damage was done to cultural sites. However,
I am now very disturbed, as well as many other Utah Sheriffs, by what the
prosecution is now recommending. I have read the prosecutions statement on
sentencing and wonder what has brought the drastic change.27
3. The need to avoid unwarranted sentencing disparities for similar conduct.
In United States v. Brown, et al., Case No. 2:11-cr-00039-SA, we have a very similar
case that can be used to consider unwarranted sentencing disparities. In that case, Mr. Brown and
Mr. Felstead rode OHVs all over Recapture Canyon and created an unauthorized trail by
chopping down trees, moving boulders, and constructing a bridge. They were convicted of
willfully destroying government property. Their conduct was far more egregious than what Mr.
Lyman did. They were sentenced to pay restitution totaling only $35,000 and ordered to serve
probation, with no additional fine. Mr. Lyman has already been ordered to pay a large restitution
amount. Any sentence to prison or additional fine would be disparate when compared to Mr.
Brown and Mr. Felstead, who pled to felonies and destroyed property.
Also relevant to consider are the artifact cases that resulted from the Federal enforcement
action in 2009. Approximately twenty-five (25) defendants were charged in related artifact
looting cases, many of which pled to felonies, and none received jail sentences. The acting U.S.
Attorney at the time, Carlie Christensen, was quoted in the Deseret News responding to the fact
that no defendants were incarcerated: I think given the facts and the circumstances where you
look at the nature of the crime, you look at the deterrent effect, you look at their criminal history,
I think the sentences they received were appropriate.28
27
28
Sheriff Letter, Attachment D.

Deseret News article, Sept 24, 2011, Attachment G.
16
4.
Policy Statements
There are no specific policy statements relative to this case. However, the general tenor
and trend regarding incarceration in the federal system is that the prisons are overpopulated and
prison time should generally be avoided for first time, non-violent offenders. There is no useful
reason to send Mr. Lyman to prison for his conduct, especially in light of the above
considerations. To the contrary, Mr. Lyman can serve much more constructively if, as a
condition of a sentence of probation, he is required to use his knowledge and strength in rural
Utah to help bridge the gap between the BLM and local interests. For example, adopting Mr.
Conines idea, 29 Mr. Lyman should be required to work with rural counties to facilitate
communication with BLM and to lessen the existing tensions. He could act as a de facto
ombudsman and work with Mr. Conine to remedy this. What better way to serve than by
ordering Mr. Lyman community service hours that truly help the communities of rural Utah.
CONCLUSION
Counsel recognizes that sentencing is a difficult decision making process for most judges.
We also recognize that the Court has to weigh and balance a number of important considerations,
most of which are statutorily mandated under 18 U.S.C. 3553(a).
Counsel believes that probation, with terms as determined by the Court, is an appropriate
sentence in this case. While the statutory maximum is one year in prison, and Counsel
understands that your Honor can sentence Mr. Lyman to a jail sentence for a lesser term, it is
respectfully submitted that this case does not warrant a prison or jail sentence given its nature,
and Mr. Lymans personal background and characteristics.
29
Conine Letter, Attachment E.

17
This case has created tensions in San Juan County and rural Utah between its citizens and
the BLM. It is respectively submitted that incarceration of Mr. Lyman may only exacerbate these
existing tensions. The citizens of San Juan County have been hoping for some understanding,
and recognition of their legitimate local interests. The Courts decision will largely impact not
only Mr. Lyman, but his constituents as well, at least in their perception of what is fundamentally
fair in a case such as this. These citizens desperately want to believe in their government and its
institutions; they already believe Mr. Lyman has been thoroughly punished and deterred. A just,
but merciful sentence by this Court will be understood as a reflection of the judicial systems
wisdom, and its inherent fairness and even-handedness.
In one of the courtrooms at the United States Tenth Circuit Court, it is inscribed Reason
is the Soul of Law. Counsel takes that to mean that Mr. Lyman will not be sentenced based
upon his politics, for his position on broad issues of important public policy related to public
lands, nor will he be sentenced based upon an inaccurate depiction or narrative found in certain
influential media writings. Reason, as does federal law, requires he be sentenced for who he is as
a person, and for what he did and its relative severity and harm. It is on this basis that Counsel
firmly believes probation is the appropriate sentence.
Moreover, if Mr. Lyman fails to comply with probation, the Court retains essentially the
hammer, and can send Mr. Lyman to prison. A sentence of probation carries with it huge
consequences and cannot be dismissed as a light sentence. Moreover, given what Mr. Lyman
is required to pay in restitution, and the very public humiliation and ridicule he has already
experienced, with the distinct possibility of limitations on his CPA license, it is clear that he has
already been punished severely.
18
Phil Lymans deep familial roots are in San Juan County, and he and his ancestors have
been tied to Recapture Canyon for generations. He and his family have been model citizens, and
as the various letters have observed, he loves this Country and he loves San Juan County, its
people and its land. He concedes he made a mistake, or a mistake in judgment, which now with
the benefit of 20/20 hindsight, he would not make again. His prior judgment has already cost
him, and the financial consequences will be felt for many years by him and his family.
It is for these reasons, and all of the arguments contained herein, that probation is an
appropriate sentence for Mr. Lyman, and counsel respectfully asks that the Court impose such a
sentence.
STIRBA, P.C.
By:
/s/ Jeffrey D. Mann
PETER STIRBA
JULIA D. KYTE
JEFFREY D. MANN
Attorneys for Defendant Phillip K. Lyman
19
DEFENDANT PHILLIP KAY LYMANS SENTENCING MEMORANDUM was served by
the method indicated below, to the following:
Jared C. Bennett, United States Attorney
John W. Huber, Assistant U.S. Attorney
Lake Dishman, Assistant U.S. Attorney
185 South State Street, Suite 300
john.huber@usdoj.gov

( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
Nathan A. Crane
SNOW CHRISTENSEN & MARTINEAU
nac@scmlaw.com

( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
/s/
20
Zachary B. Hoddy
Legal Assistant
Ecug!3<25.et.11581.FP.GLH!!!Fqewogpv!354.8!!!Hkngf!23018026!!!Rcig!2!qh!;
Ecug!3<25.et.11581.FP.GLH!!!Fqewogpv!354.8!!!Hkngf!23018026!!!Rcig!;!qh!;

Telephone: (801) 524-5682

CENTRAL DIVISION
Case No. 2:14CR470RJS-BCW

UNITED STATES POSITION
STATEMENT ON SENTENCING
(Including objections to Pre-sentence
Report)
Plaintiff,
vs.
PHILLIP KAY LYMAN
JEROME WELLS;
&
MONTE
Honorable Robert J. Shelby
Magistrate Judge Brooke C. Wells
Defendants.
The United States provides this memorandum regarding its sentencing position for
Defendants Phillip K. Lyman (Mr. Lyman) and Monte J. Wells (Mr. Wells) (collectively,
Defendants), which includes its objections to the Pre-sentence Report (PSR). In sum, the
United States recommends that this Court impose a sentence that includes: (1) a reasonable term of
incarceration based on Defendants willful conduct, their disrespect for the law, and the need to
deter similar criminal conduct; (2) a term of supervised release; and (3) a fine based on
Defendants ability to pay; in addition to (4) joint and several restitution in the amount of
$95,955.61. To be clear, the United States does not recommend a specific term of incarceration
but leaves that determination wholly within the sound discretion of the Court.
INTRODUCTION
The United States Constitution established a federal government and made the laws thereof
the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding. U.S. Const. art. VI 2. With the Constitutions establishment of a
national governmentwhose laws were supreme over other conflicting lawsstates, local
governments, and citizens have at various times dealt with the question of what to do when they
disagree with an action that the federal government has taken. Although there have been many
extra-judicial theories posited over the years on how to deal with this issueranging from
nullification to secessionevery theory has eventually yielded to one axiom: America is and
always has been a nation of laws. Proclamation No. 9265, 80 Fed. Reg. 25,579 (April 30, 2015).
As such, the people of the United States appropriately expect everyone, including
Defendants, to stay within the boundaries of the law when expressing disagreement with any
action of the federal government. Indeed, the law provides that anyone aggrieved by government
actionincluding the closure of federal public land to motorized usemay seek judicial review.
5 U.S.C. 702; Utah Shared Access All. v. Carpenter, 463 F.3d 1125, 1134 (10th Cir. 2006)
(reviewing temporary road closures under Administrative Procedure Act). Under the law, the
court may declare unlawful and set aside a road closure if the court deems it to be arbitrary and
capricious.
5 U.S.C. 706(2).
In addition to litigation, the law allows for many other
non-judicial mechanisms to seek redress from agency decisions. This list includes, among many
other things, calling upon elected representatives in the political process, grass-roots political
movements, and vigorous expressions of opinion through lawful protest.
2
Instead of choosing any one or more of these numerous legally-permissible mechanisms to

express their disagreement with federal decisions, Defendants chose crime. Defendants crimes
included recruiting dozens of others to join them in breaking the law. Defendants recruiting
efforts were significantly assisted by Mr. Lymans use of his political office, which provided the
specter of official imprimatur for his criminal acts. Where, as here, Defendants turn to crime to
express their disagreement with government decisions instead of using the numerous lawful means
at their disposal, the law must impose consequences that are significant enough to teach
Defendants respect for the law and to deter Defendants and others from engaging in similar
criminal behavior.
Although the United States defers entirely to this Court to impose the appropriate
punishment, the following factual background section and subsequent legal analysis seek to
inform this Court about the appropriate sentence under the United States Sentencing Commission
Guidelines (Guidelines) and the sentencing factors in 18 U.S.C. 3553(a). United States v.
Pachco-Soto, 386 F.Supp.2d 1198, 1204 (D. N.M. 2005) (addressing the Guidelines first followed
by an analysis of the sentencing factors under section 3553(a)). Based on the factual background
and legal analysis below, the United States recommends that this Court impose a reasonable
sentence of incarceration, a term of supervised release, a fine based on Defendants respective
abilities to pay, and, as already awarded, restitution in the amount of $95,955.61.
FACTUAL BACKGROUND
A. Formation of the Conspiracy
On February 27, 2014, Mr. Lyman held a town hall meeting in Blanding, Utah. Trial
3
Exhibit 23. At that meeting, Mr. Lyman stated that the community needed to send a message to
the Bureau of Land Management (BLM). Trial Exhibit 23; ECF No. 72-2 at 19 of 34. To send
the message, Mr. Lyman and his constituents resolved: we can talk to our congressmen, talk to
our state legislature, or people right here have the ability to go and do something, and we said,
well, lets go ride Recapture. ECF No. 72-2 at 19 of 34.
Three days later, Mr. Lyman emailed Juan Palma, State Director of BLM, to notify him
about Mr. Lymans decision to illegally ride motorized vehicles in Recapture Canyon. Trial
Exhibit 23. In the email, Mr. Lyman stated, We have endured one broken promise after another
regarding the trail in Recapture Canyon. The delays are systemic and are more consistent with
despotism than with government by, for, and of the people. Collectively we are ready to take
action. Trial Exhibit 23. Mr. Lyman then asked Mr. Palma to take action so that the protest ride
would not have to be an illegal movement. Trial Exhibit 23. On that same day, Mr. Lyman
also posted on his public Facebook page that he hoped BLM would take some action which
authorizes our activity. Trial Exhibit 35C. BLM neither granted permission nor otherwise
authorized the protest ride.1
B. Broadcasting the Conspiracy
Following these initial emails, Defendants set to work organizing and advertising the
protest ride. Mr. Lyman began by authoring an opinion piece about the Recapture Canyon protest
ride that the Deseret News published on April 11, 2014. Trial Exhibit 103A. Mr. Lyman
1
Recently, some blogs and letters to this Court in support of Mr. Lyman claim that BLM State
Director Juan Palma gave express permission to ride Recapture Canyon during a May 1, 2014
telephone conversation that Mr. Lyman surreptitiously recorded. This is the same argument that
Mr. Lyman put forth at trial, which the jury unequivocally rejected. Such a claim is meritless.
4
expressed his disappointment when he saw that the Deseret News removed his invitation to join the
protest ride. Trial Exhibit 35B.
Defendants sought other venues to spread the word for the illegal ride. Mr. Lyman gave
interviews on talk radio and posted regular updates via his public Facebook page. Govt Exhibits
93 and 94 (not offered at trial); Trial Exhibits 35B, 35A, 34C, and 104A. Mr. Wells used his
website The Petroglyph and its companion Facebook page to give updates about and context for
the upcoming protest ride. Trial Exhibits 73, 74, 105A. Together, Defendants posted a series of
YouTube videos in which they discussed the history of Recapture Canyon and the need for the
protest ride.
Trial Exhibits 74, 104A.
The day before their crime, both gave television
interviews discussing the ride. Trial Exhibits 46A1, 46A2. During one of these interviews, Mr.
Lyman acknowledged that the protest ride was breaking the law from a federal standpoint.
Trial Exhibit 99A.
Defendants were so effective in their publicizing efforts that Mr. Lyman changed the date
of the illegal ride from May 8 to Saturday, May 10, 2014, so more people can come. Trial
Exhibit 35A. Thus, as a San Juan County resident testified at trial, if you lived in San Juan
County and didnt know about the protest, then there was something wrong with you.
Testimony of Josh Ewing.
C. Attempts to Pressure the BLM
At the same time that Defendants were getting the word out, they continued to lobby BLM
to take some action to authorize the illegal ride. On March 27, 2014, Defendants met with Mr.
Palma over lunch in Salt Lake City to discuss the protest ride. Trial Exhibit 22, Testimony of
5
Juan Palma. When Mr. Lyman did not receive any follow up communication from Mr. Palma,
Mr. Lyman sent another email to Mr. Palma that twice warned that the protest would go forward
unless there was some sort of action from BLM. Trial Exhibit 22.
As a San Juan County Commissioner, Mr. Lyman discussed the upcoming illegal ride at
meetings of the San Juan County Commission. During the April 21, 2014 meeting, Mr. Lyman,
referred to himself as the ringleader and spokesman of the protest ride. Trial Exhibit 18.
At the next San Juan County Commission meeting held on April 28, 2014, Mr. Lyman used
the meeting to describe the events planned for the upcoming protest. Trial Exhibit 19A. He
talked about a pre-ride rally that would be held at a pavilion in Blanding where he would basically
give [the riders] some rules and where they can go, what the lay of the land is. Trial Exhibit 19A.
He stated that if there were protesters who wished to use an all-terrain vehicle (ATV), then
well explain what the rules are, and they can make their choice on that day. Trial Exhibit 19A.
He announced his intent to ride and that he needed to rent an ATV before the ride because he did
not own one. Trial Exhibit 19A. Also, in response to a comment about the large amount of
vegetation along the route and a doubt that an ATV could get through, Mr. Lyman mentioned that
he was hoping to get the trail-cat down there . . . . Trial Exhibit 19A.
D. Warnings of the Consequences
Following that meeting, Mr. Lyman attended a county coordination meeting with BLM
representatives at which Lance Porter, BLM Canyon Country District Manager, hand-delivered a
letter to Mr. Lyman. Trial Exhibit 24. The letter formally warned Mr. Lyman multiple times of
the potential criminal and civil penalties that he and any person might face if they were to violate
6
the closure order in Recapture Canyon. Trial Exhibit 24. In the event that Mr. Lyman refused to
call off the illegal ride, the letter also offered Mr. Lyman the opportunity to walk through the
closed portion of Recapture Canyon with a BLM archeologist so long as Mr. Lyman did not
construe BLMs action as approving the protest. Trial Exhibit 24. Mr. Lyman requested this
walkthrough with the archeologist so he could record the condition of any archeological sites in
case the BLM later claimed those sites were damaged by the ride. Trial Exhibit 24. BLM
granted this request in an attempt to minimize the damage it believed the protest ride would cause.
Trial Exhibit 26.
Mr. Lyman responded with a letter of his own to BLM the next day. Trial Exhibit 24.
Therein, he acknowledged that the walkthrough will not be construed in any way to be BLMs
consent for the proposed ride to take place. Trial Exhibit 24. The walkthrough was scheduled
for and occurred on May 6, 2014.2
On May 2, 2014, Mr. Porter and Mr. Lyman again exchanged correspondence, this time via
email. Trial Exhibit 26. Again, BLM warned Mr. Lyman of the potential criminal and civil
consequences for anyone who violated the closure order. Trial Exhibit 26.
E. The May 10, 2014 Protest Ride
On May 10, 2014, a large crowd gathered at the Centennial Park pavilion, and the pre-ride
rally began. Mr. Lyman and others addressed the crowd. Trial Exhibit 65A. Mr. Wells
documented the event. Trial Exhibit 65A. Following the remarks, dozens of people drove ATVs
At least one letter in support of Mr. Lyman contends that BLM refused to engage in a walk
through with Mr. Lyman before the ride. The undisputed trial testimony shows that the
letter-writer is misinformed.
7
to the north end of the Recapture Canyon closure boundary and entered into the closed area.
Testimony of Jason Moore. Defendants were two of those participants. Trial Exhibits 5,6, 7, 89,
and 90. Although some protesters, including Defendants, turned around at the end of San Juan
County Conservancy Districts BLM-authorized right-of-way (the Pipeline Road),
approximately 32 motorized vehicles proceeded further south until exiting the closure area at the
Browns Canyon Trail access point. The ride beyond the terminus of the Pipeline Road went over
and through several riparian areas and archeological sites. Testimony of Jason Moore.
Due to Defendants publicizing efforts, some of the riders were affiliated with armed
militia groups, which mere weeks before had taken up arms against BLM law enforcement and
other BLM employees. As a result of the armed riders and their strong feelings against BLM, the
San Juan County Sheriff was present at the ride in order to prevent conflict. The San Juan County
Sheriff told a reporter, We dont want clashes between citizens and clashes between BLM and
militia.
This
is
not
going
to
be
Bunkerville.
Salt
Lake
Tribune,
http://www.sltrib.com/sltrib/news/57909181-78/amp-blm- canyon-lands.html.csp (last accessed

Dec. 7, 2015).
F. The Aftermath of Defendants Crime
Two days after the illegal ride, Mr. Lyman attended his regularly-scheduled meeting of the
San Juan County Commission. During the meeting, the subject of the illegal ride was raised. Of
the ride, Mr. Lyman said, There is probably somesome repercussions that are going to come
from this. And as Ive told anybody Ive talked to, I know it wasit was myit was mymy
event and I take responsibility for it and will continue to do that. Exhibit A.
8
One of the repercussions that came from the ride was the Misdemeanor Information that
the United States filed against Defendants, among others, and was later superseded. ECF Nos. 1,
41. In the Superseding Misdemeanor Information, Defendants were charged with one count of
conspiracy and one count of riding their motorized vehicles in an area closed to motorized use.
ECF No. 41. Despite stating that he would take responsibility for the illegal ride, Mr. Lyman
pled not guilty as did Mr. Wells. ECF No. 14. Both Defendants received a public defender
until Magistrate Judge Furse later determined that Mr. Lyman had sufficient resources to pay for
his own attorney. ECF No. 34. Defendants later moved to dismiss this action, which this Court
denied. ECF No. 72, 78, 91.
At trial, the United States presented six witnesses and numerous exhibits showing that
Defendants knowingly and willfully conspired to ride motorized vehicles through Recapture
Canyon and actually did so on May 10, 2014. Defendants sole defense was that they had
permission to do the protest from Juan Palma and only rode the Pipeline Road, which the water
master for the San Juan Water Conservancy District had purportedly granted Mr. Lyman
permission to use. However, no evidence showed that Mr. Lyman ever communicated this
alleged permission to other co-conspirators, the media, or to BLM. The jury convicted both
Defendants of conspiracy and for actually riding motorized vehicles in an area closed to such use.
Minutes after his conviction, when asked if he would do the illegal ride again, Mr. Lyman
responded, Yes, yes. Absolutely.3
On July 20, 2015, Mr. Lyman moved to disqualify Judge Shelby from this action. ECF
3
http://kutv.com/news/local/san-juan-co-commissioner-blogger-convicted-of-illegal-atv-ride
(last visited Dec. 7, 2015).
9
No. 164. Judge Shelby granted the motion on August 31, 2015, and, after three other judicial
recusals, this Court received this matter. ECF No. 192, 196, 197. On October 28, 2015, this
Court held a hearing on restitution, after which it ruled that the appropriate amount of restitution is
$95,955.61. However, this Court reserved the questions of whether to impose restitution in lieu
of or in addition to other punishments and whether Defendants should be jointly and severally
liable for the amount of restitution ordered.
On November 25, 2015, the United States Probation Office (USPO) issued a final PSR
for both Mr. Lyman and Mr. Wells, which included responses to the objections that the parties had
previously filed. To address these objections, this memorandum discusses below the proper
calculation method for Defendants sentence under the United States Sentencing Guidelines.
Finally, this memorandum shows that a period of incarceration is appropriate in addition to other
penalties that this Court imposes at sentencing.
ARGUMENT
I.
UNDER THE GUIDELINES, A SENTENCE OF INCARCERATION AND

SUPERVISED RELEASE IS APPROPRIATE FOR BOTH DEFENDANTS.
Under the Guidelines, this Court should impose a sentence of incarceration and supervised
release for both Defendants. To calculate the appropriate Guideline range: (1) this Court should
begin with 2X5.2 for the Base Offense Level of 6; (2) add 4 because both Defendants qualify as
organizer/leaders; and (3) add 2 to Mr. Lymans offense level for abusing a position of trust.
Each issue is discussed below and shows that Mr. Lyman and Mr. Wells have an offense level of
12 and 10 respectively.
10
A. Section 2X5.2 is the Appropriate Guideline To Provide the Base Offense Level.
Contrary to the Presentence Report, section 2X5.2 provides the appropriate Base Offense
Level for Defendants conduct. The Guidelines provide the Base Offense Level based upon
Defendants offense of conviction. USSG 1B1.1(a)(1) (2014). Defendants were convicted of
18 U.S.C. 371 and 43 U.S.C. 1733(a). Of the Base Offense Level Guidelines listed in
Appendix A under 18 U.S.C. 371, none provides the Base Offense Level for Defendants
conspiracy to violate 43 U.S.C. 1733(a). The closest applicable Base Offense Guideline is
section 2X1.1, which states that the Base Offense Level for conspiracy is the same as the Base
Offense Level for the substantive offense.
Here, the Base Offense Level for the substantive offense (i.e., 43 U.S.C. 1733(a)) is
section 2X5.2. Although Appendix A states that section 2B2.3 applies to violations of 43 U.S.C.
1733(a), Appendix A contains a parenthetical reference limiting the applicability of section
2B2.3 only to crimes that are based on violations of 43 C.F.R. 4140.1(b)(1)(i).4 Appendix A at
564. Defendants substantive offense did not involve 43 C.F.R. 4140.1(b)(1)(i) because
Defendants were not convicted of [a]llowing livestock or other privately owned or controlled
animals to graze on or between [public lands] [w]ithout a permit, lease of other grazing use
4
Whenever Appendix A contains a parenthetical reference beneath a statute listed therein, the
parenthetical reference constitutes a limitation. For example, Appendix A lists 26 U.S.C. 7212(a)
twice. Each listing of section 7212(a) in Appendix A contains different associated Guidelines that
may be applicable. To guide the reader in determining which listing of section 7212(a) applies,
Appendix A provides a parenthetical reference under the second listing of 7212(a) that says (omnibus
clause). This informs the reader that if the conviction is under the omnibus clause of section 7212,
then the Guidelines listed thereafter apply. Otherwise, the other Guideline listed in the first reference
to section 7212(a) applies. Other examples of the limiting effect of the parenthetical references in
Appendix A are: 18 U.S.C. 113(a)(5) (Class A misdemeanor provisions only); 18 U.S.C. 1716
(felony provisions only); and 31 U.S.C. 5311 (section 329 of the USA PATRIOT Act of 2001).
11
authorization . . . . Instead, Defendants violation of 43 U.S.C. 1733(a) was based on violating

43 C.F.R. 8341.1(c), which precludes the operation of off-road vehicles . . . on those areas and
trails closed to off-road vehicle use. Consequently, Appendix A does not provide a Base
Offense Level Guideline for Defendants violation of 43 U.S.C. 1733(a) here.
Where, as here, Defendants have been convicted of a Class A misdemeanor that is not
covered by any other specific guideline, section 2X5.2 applies. USSG 2X5.2. And under
section 2X5.2, Defendants Base Offense Level is 6. Given that the substantive offense carries a
Base Offense Level of 6, Defendants conspiracy conviction under 18 U.S.C. 371 also carries a
Base Offense Level of 6. USSG 2X1.1.
Despite the foregoing, the PSR asserts that section 1B1.2 requires the application of the
section most analogous to Defendants crime, which the PSR claims is the trespass guideline under
section 2B2.3. In this respect, the PSR is incorrect because the rule requiring the most analogous
guideline when no other is specified applies only to felonies and not to misdemeanors. Although
section 1B1.2(a) provides that the most analogous guideline should be used for statutory
provisions not listed in the Statutory Index, section 1B1.2(a) specifically cites to section 2X5.1 in
support of the proposition. USSG 1B1.2(a). Section 2X5.1 provides that [i]f the offense is a
felony for which no guideline has been promulgated, apply the most analogous offense guideline.
USSG 2X5.1 (emphasis added). However, section 2X5.2, which governs misdemeanors, does
not contain such language. Instead, section 2X5.2 applies to Class A Misdemeanors (Not
covered by Another Specific Offense Guideline). USSG 2X5.2 (emphasis added).
The omission of the command to use an analogous guideline in section 2X5.2 is no
12
accident but, instead, shows a clear intent not to impose such a requirement on Class A
Misdemeanors that are not governed by a specific guideline. Prior to 2006, section 2X5.1
provided, If the offense is a felony or Class A misdemeanor for which no guideline expressly has
been promulgated, apply the most analogous offense guideline. United States v. Hyde, 977 F.2d
1436, 1438 (11th Cir. 1992) (emphasis added) (quoting 1992 version of USSG 2X5.1). In
November 2006, the United States Sentencing Commission struck Class A misdemeanors from
section 2X5.1, and, instead, created section 2X5.2. Section 2X5.2 omits the requirement to apply
an analogous guideline and expressly provides that it applies to Class A Misdemeanors Not
Covered by Another Specific Offense Guideline. USSG 2X5.2 (emphasis added). Indeed,
the intent of creating section 2X5.2 was to remove the requirement to apply analogous guidelines
to Class A Misdemeanors that are not otherwise specified. As shown above, Defendants crime is
a Class A Misdemeanor that is not covered by another specific offense guideline. Consequently,
section 2X5.2 applies regardless of whether another guideline could arguably be analogous.
Accordingly, the appropriate base level offense is 6.
B. This Court Should Add 4 Levels to Defendants Base Offense Level Because They
Are Both Leader/Organizers.
In addition to the Base Offense Level of 6, this Court should add 4 levels because
Defendants organized and led dozens of people in the illegal protest ride.
Section 3B1.1
provides: If the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive, increase by 4 levels. USSG 3B1.1. As shown
below, both Mr. Lyman and Mr. Wells meet the requirements for this 4-level increase.
First, the 4-level increase should apply to Mr. Lyman because he was the undisputed leader
13
and organizer of the conspiracy and May 10, 2014 illegal ride. When discussing the illegal ride in
a San Juan County Commission meeting on April 21, 2014, Mr. Lyman proclaimed himself to be
the ring leader and the spokesman of the ride. Trial Exhibit 18. The evidence at trial
corroborated that assertion because Mr. Lyman was the person who: (1) sent out information to his
constituents and to BLM about the ride, Trial Exhibit 22, 23, 24, 26, 34C, 35A, 35C; (2) changed
the date of the ride to May 10, 2014 so that more people can come, Trial Exhibit 35A; (3) held
pre-ride rallies, Trial Exhibit 19A, 46A1, 65A, 70A; (4) appeared on television, radio, and in the
print media to promote the ride, Trial Exhibit 46A1, 99, 103A; and (5) instructed protestors as to
which trials were legal to ride and which were not. Trial Exhibit 105A. On May 10, 2014,
dozens of people, including Mr. Lyman, crossed the closure line with their motorized vehicles and
rode into Recapture Canyon. Accordingly, Mr. Lyman was the leader and organizer of the illegal
ride, which involved far more than 5 people.
Second, Mr. Wells should also receive a 4-level increase because he took an organizing
role in the offense. Mr. Wells met early on with Mr. Lyman and BLM State Director Palma, to
discuss the upcoming illegal ride. Testimony of Juan Palma; Trial Exhibit 22. Mr. Wells also
repeatedly served as an important medium through whom Mr. Lyman was able to convey his
messages about the ride to the public. Trial Exhibit 73, 64A, 65A, 69A, 70A, 71A, 74, 105A;
ECF No. 72-2. Mr. Wells also added his own flourishes to recruit others to come and join the
illegal ride. Trial Exhibit 73. Mr. Wells interviewed Mr. Lyman in a three-part YouTube series
so that Mr. Lyman could explain the reason for the upcoming illegal ride. Trial Exhibit 74
(transcript at ECF No. 72-2). After providing this extensive assistance in getting the word out
14
about the illegal ride, Mr. Wells joined Mr. Lyman and dozens of others by crossing the line with
his motorized vehicle and riding into the closed area of Recapture Canyon. Thus, Mr. Wells is an
organizer and should receive a 4-level increase.
C. Mr. Lyman Should Receive an Additional 2-Level Increase For Abusing a Position
of Trust.
This Court should add 2 more levels to Mr. Lymans Offense Level because he abused a
position of trust to commit his crimes. Section 3B1.3 provides:
If the defendant abused a position of public or private trust . . . in a manner that
significantly facilitated the commission or concealment of the offense, increase by
2 levels. This adjustment may not be employed if an abuse of trust or skill is
included in the base offense level or specific offense characteristic. If this
adjustment is based upon an abuse of a position of trust, it may be employed in
addition to an adjustment under 3B1.1 (Aggravating Role) . . . .
USSG 3B1.3. To establish this enhancement, the United States must show: (1) Mr. Lyman
possessed a position of trust; and (2) Mr. Lyman abused that position to significantly facilitate the
commission of the offense. United States v. Guidry, 199 F.3d 1150, 1159 (10th Cir. 1999). Each
requirement to apply this enhancement is established in order below.
1. Mr. Lyman held a position of trust.
Public office is a position of public trust. United States v. Burke, 431 F.3d 883, 888 (5th
Cir. 2005) (recognizing that elected public office is a position of trust that allowed alderman to
facilitate transport of drugs). Whether Mr. Lyman held a position of trust is evaluated from the
victims perspective. Id. at 1160 (citation and quotation omitted).
Mr. Lymans position as an elected official helped facilitate his crime against the United
States and those for whom it holds public land in trust. Light v. United States, 220 U.S. 523, 537
15
(1911) (All the public lands of the nation are held in trust for the people of the whole country.).
Mr. Lyman was a San Juan County Commissioner who was specifically designated to serve on a
committee dealing with land issues. Testimony of Joshua Ewing. Consequently, he frequently
met with numerous BLM officials. Trial Exhibit 24. With this type of access, Mr. Lyman was
able to: (1) discuss with BLM officials the prospect of not having law enforcement arrest violators
at the illegal ride (May 1, 2014 phone call with State Director Palma); (2) discuss how BLM could
make the illegal ride legal over lunch with Juan Palma; and (3) secure a personal pre-ride tour of
the archeological sites on the route of the illegal ride prior to May 10, 2014. Trial Exhibit 24. In
corresponding with BLM on these issues relating to the ride, Mr. Lyman used his official title and
County Commissioner letterhead. Consequently, even though BLM did not elect Mr. Lyman to
office, his public office gave him access to BLM officials that he tried to use to his advantage.
2. Mr. Lymans abuse of his public office significantly facilitated the
commission of the offense.
Mr. Lyman used his position as a San Juan County Commissioner to significantly facilitate
the illegal ride. The conspiracy to engage in the illegal ride was hatched at a February 27, 2014
town hall meeting that Mr. Lyman convened. Trial Exhibit 23. Mr. Lyman used his San Juan
County Commission email address and letterhead to communicate with constituents and BLM
about the ride. Trial Exhibit 22, 23, 24, 26. Mr. Lyman used his public Facebook page to
communicate about the ride and was referred to as County Commissioner Lyman in all of his
radio, television, and newspaper appearances. Trial Exhibit 34C, 35C, 74, 99, 103A, 104A. Mr.
Lyman availed himself of the record at official meetings of the San Juan County Commission to
discuss the ride. Trial Exhibit 18, 19A. Indeed, even at trial, Mr. Lyman repeatedly argued that
16
he did these illegal acts as an elected official on behalf of his constituents. Thus, Mr. Lyman used
his elected office and the relationship it provided him to BLM officials to facilitate his crimes and,
accordingly, should receive a 2-level increase.
Based on the foregoing, Defendants both have a Base Offense Level of 6 under section
2X5.2, a 4-level increase for leader under section 3B1.1, and, Mr. Lyman should receive a 2-level
increase under 3B1.3. Neither Mr. Lyman nor Mr. Wells should receive any reduction for
acceptance of responsibility under section 3E1.1 because they put the government to its burden of
proof at trial by denying the essential factual elements of guilt. USSG 3E1.1 comment (n.2).
Thus, Mr. Lyman has an Offense Level of 12, and Mr. Wells has an offense level of 10.
An Offense Level of 12 and a Criminal History Category of I places Mr. Lyman in Zone C
with a potential term of incarceration of 10-16 months. However, the statutory maximum of
incarceration for a Class A Misdemeanor is 12 months. 18 U.S.C. 3581(b)(6). Because Mr.
Lymans sentence falls within Zone C, he is eligible to serve a sentence of imprisonment or a
sentence of imprisonment combined with substitute punishment. USSG 5C1.1(d). An Offense
Level of 12 also places Mr. Lyman within a fine range of between $3,000 and $30,000 based on his
ability to pay, USSG 5E1.2(c)(3), which is beneath the maximum fine of $100,000.00 for Class
A misdemeanors. 18 U.S.C. 3571(b)(5).
Mr. Wells Offense Level of 10 places him in Zone B, with a potential term of
incarceration of between 6-12 months. Zone B provides for a sentence of imprisonment; a
sentence of imprisonment combined with substitute punishment; or a sentence of probation in
combination with intermittent confinement, community confinement, or home detention. USSG
17
5B1.1, 5C1.1. An Offense Level of 10 also carries a fine range of between $2,000.00 and
$20,000.00. If imprisonment is imposed, Defendants should receive up to one year of supervised
release. 18 U.S.C. 3583(b)(3); USSG 5D1.1(b), 5D1.2(a)(3). Thus, under the Guidelines,
Defendants should receive a sentence of incarceration, pay a fine based on their ability to pay, and
receive up to one year of supervised release.5
II.
UNDER THE FACTORS OF 18 U.S.C. 3553(A), A TERM OF

INCARCERATION IS APPROPRIATE.
Similar to the Guidelines, the factors under 18 U.S.C. 3553(a) favor a sentence of
incarceration, supervised release, and a fine based on ability to pay.6 When imposing a sentence,
section 3553(a) requires a court to consider, among other facts, the nature and circumstances of
the offense and the history and characteristics of the defendant in addition to the need to promote
respect for the law and to afford adequate deterrence to criminal conduct. Each factor is
discussed below for both Defendants.
In the event that this Court relies on section 2B2.3 for the Base Offense Levelwhich it should
notthen both Mr. Lyman and Mr. Wells will have an Offense Level of 10. Section 2B2.3
begins with a Base Offense Level of 4. But because Mr. Wells possessed a firearm while
committing his crime, he would receive a 2-level increase. Trial Exhibit 7. As discussed above,
both Defendants would receive a 4-level increase for their leadership and organizing roles in the
crimes, and Mr. Lyman would receive an additional 2-level enhancement for abusing the public
trust. Thus, both Mr. Lyman and Mr. Wells would share an Offense Level of 10, which puts them
in Zone B for incarceration purposes and a fine amount of between $2,000 and $20,000.
However, as shown above, section 2B2.3 does not provide the proper Base Offense Level because
Appendix A clearly limits section 2B2.3 to an offense that does not apply here.
6
Because the imposition of a fine is dependent upon each Defendants ability to paywhich
would require discussion on confidential financial matters as to each defendantthe reasons for
imposing a fine under 18 U.S.C. 3553(a) are not discussed further.
18
A. The Nature and Circumstances of Defendants Offenses Coupled With Their

History and Characteristics Militate in Favor of Incarceration.
Defendants conduct and characteristics strongly support a sentence of incarceration.
Defendants knew that their conspiracy to and actual ride through the closed area of Recapture
Canyon was illegal, but they did it anyway and strongly encouraged many others to join them.
Trial Exhibit 99A. BLM warned Mr. Lyman of the potential consequences of the illegal ride
numerous times before May 10, 2014, but neither Mr. Lyman nor Mr. Wells listened. Trial
Exhibit 24, 26. Their actions amount to a calculated, mass defiance of the criminal law.
Further, as shown above, Mr. Lyman used his elected public office to bring his crimes
about by using his official title, official email, official letterhead, and county commission meetings
to discuss and promote his upcoming crime. Mr. Lyman also sent information about the ride to
the Bundy family, who mere weeks earlier had used militia members to take up arms against the
United States. And, not surprisingly, riders affiliated with the militias showed up armed, which
necessitated the presence of the San Juan County Sheriff who stated that his presence at the ride
was to avoid another Bunkerville.
Salt Lake Tribune, http://www. sltrib.com/sltrib/news
/57909181-78/amp-blm-canyon-lands.html.csp (last accessed Aug. 21, 2015). Indeed, as shown

in the video of Mr. Lymans pre-ride rally on May 10, 2014, Mr. Lyman listened to these groups on
the day of the ride by going against his better judgment and crossing the line into the closed area.
Similarly, Mr. Wells greatly assisted in getting the word out about the ride and chose to wear a
firearm as he rode up the closed trail knowing that BLM law enforcement would be present. Trial
Exhibit 7. Because of Defendants success in getting the word out for the ride, dozens of
motorized riders crossed the closure line, and approximately 32 motorized vehicles rode from the
19
northernmost closure sign to the Browns Canyon Trail access point. This route took riders
through several riparian areas and over the top of eight archeological sites. The flagrant nature of
Defendants acts warrants incarceration.7
Despite the foregoing, Defendants attempt to distance themselves from their actions.
Specifically, they argue that their intent all along was only to ride the Pipeline Road. This is
revisionist history. In his initial email to his constituents on March 2, 2014 announcing the illegal
ride, Mr. Lyman stated, Either way, I plan to work with the County to see what trail work will
need to be done in order for the trail to be passable by May 8. Trial Exhibit 23 (emphasis added).
Again, in an April 12, 2014 email, Mr. Lyman told State Director Palma: I have the Countys
trail-cat ready to do the re-route if you have that marked. Otherwise we are OK with the existing
trail. Trial Exhibit 22-3 (emphasis added).
During an April 28, 2014 San Juan County
Commission meeting, Mr. Lyman said that he was hoping to get the trail-cat down there . . . .
Trial Exhibit 19A. Additionally, on May 1, 20149 days before the rideMr. Lyman reiterated
his desire to re-route the trail. In a phone call that Mr. Lyman surreptitiously recorded with State
Director Palma, Mr. Lyman said,
My biggestmy biggest dissuasion from going down the trail is theis the
overgrowth of willows on the north end. It would be hard on a piece of equipment
toto go through there, you know, so I wanted to withdraw the right-of-way
application, take the Trailcat down and fix that . . . .
Exhibit B (emphasis added). Mr. Wells echoed Mr. Lymans understanding of what needed to be
done to ride Recapture Canyon. In the YouTube interview that Mr. Wells conducted with Mr.
Although Defendants crimes are Class A Misdemeanors, the aspects to their crimes described in
the text above increase the seriousness of their offenses. 18 U.S.C. 3553(a)(2)(A).
20
Lyman before the illegal ride, Mr. Wells states: Weve got some issues with the [Recapture
Canyon] trail itself, where it hasnt been maintained for the last 8 years, 7 years. And so there are
some places where you cant get through unless we do some trail maintenance actually . . . . But
that may prevent us from riding parts of it. . . . ECF No. 72-2 at 29 of 34 (emphasis added). If
Defendants were truly planning all along to ride only on the Pipeline Road, then there is absolutely
no reason to do some trail maintenance or to use heavy machinery like a Trailcat to do trail
work to make a decades-old right-of-way passable for a protest ride. Moreover, Mr. Lyman
received a guided tour from BLM of the numerous archeological sites beyond the end of the
Pipeline Road. If his intent was to stay on the Pipeline Road all along, he clearly did not tell BLM
of that fact when he was being shown the archeological resources beyond the purported terminus
of his illegal ride.
Further, the first time that Mr. Lyman even mentions driving only on the Pipeline Road
was his post on The Petroglyph May 7, 2014 where he says: For my part, I plan (as of this writing)
to come into Recapture from the North end and to drive the Pipeline Road until you come to
where the water pipeline leaves the canyon. . . . I expect to turn around at that point. . . . Trial
Exhibit 105A (emphasis added). Stating that his plan as of this writing was to ride exclusively
on the Pipeline Roadin addition to all of his talk about re-routing the trailshows that Mr.
Lyman made a last-minute, personal decision to stay on the Pipeline Road. Thus, Defendants
assertion that their conspiracy was limited to the Pipeline Road is revisionist history and, if
anything, shows their knowledge that driving beyond the Pipeline Road would cause damage.
This evidence prevents Defendants from minimizing the nature of their offense, and their
21
arguments to the contrary merely reflect a disturbing refusal to accept responsibility for their
actions.8
Moreover, Defendants history and personal characteristics strengthen the need for
incarceration. Defendants are well educated and have been, for the most part, law abiding
citizens. In other words, Defendants know what the law means and how to follow it. The fact
that they conspired to and actually rode through a canyon that they knew was closed to motorized
use reflects a deliberate departure from what they knew to be right. Moreover, the fact that they
would recruit dozens of others to join them in their illegal ride is indicative of how far Defendants
departed from their prior behavior. Where, as here, Defendants make a calculated and deliberate
choice to violate what they know to be the law, their education, past behavior, public office, and
family status should not inure to their benefit in terms of avoiding incarceration and supervised
release. Thus, the circumstances surrounding Defendants crimes along with their personal
characteristics warrant incarceration and supervised release.
B. Defendants Need Incarceration to Promote Respect For the Law and to Deter
Criminal Conduct.
Incarcerating Defendants will promote respect for the law and will help deter criminal
conduct. First, incarceration will help promote respect for the law among Defendants and those
8
In a further effort to distance himself from the conspiracy, Mr. Wells contradicts a prior
representation that he made to this Court. In his motion to dismiss, Mr. Wells represented: In
February 2014, Wells, in his role as a reporter for The PetroGlyph, attended a town hall meeting
organized by County Commissioner Lyman. . . . At the meeting County Commissioner Lyman
discussed a protest rally as a way to bring attention to the BLMs inaction. ECF No. 72 at 6.
Now, however, Mr. Wells claims that he was at another meeting instead of at the town hall meeting
where the conspiracy was hatched. He has never attempted to reconcile this discrepancy despite
being made aware of it. This post-conviction story change further shows his failure to accept
responsibility.
22
who joined them in the illegal ride. As shown above and at trial, the entire premise behind
Defendants crimes was to violate the law to show their disapproval of BLM policies. The
decision to willfully commit a crime shows a significant disrespect for the law. But Defendants
showing of disrespect for the law went further because they entirely ignored all of the available
legal options that they had to challenge BLMs decision to close Recapture Canyon and committed
crimes instead. ECF No. 72-2 at 29 of 34.
This level of disrespect for the law is especially troubling here because Defendants are both
public officials and took an oath of office in which both Defendants agreed that they would
support, obey, and defend the Constitution of the United States . . . . Utah Const. art IV, 10.
This duty to support and obey the United States Constitution includes the Supremacy Clause,
which makes the laws of the United States the supreme Law of the Land. U.S. Const. art VI,
2. When confronted before the ride with this conflict between the illegal ride and his oath of
office, Mr. Lyman said, I have heard too many people say that I took an oath to OBEY THE
LAW. I didnt. I feel a stronger moral obligation to defend the customs and culture of the
people of San Juan County. Exhibit C (attached hereto). On another occasion, Mr. Lyman
added, While BLM may claim jurisdiction, and while a federal judge may grant a federal agency
jurisdiction over everything, the basic right of self[-]government (along with Statehood) nullifies
such fantastic innovations. Trial Exhibit 22-4. Mr. Lymans statements reflect an unhealthy
and misguided disrespect for the supreme Law of the Land, and his oath to support and obey it.
Although Mr. Lyman has a right to express disagreement with the Supremacy Clause of the United
States Constitution by asserting that local and state law nullifies federal law, his conduct
23
demonstrates that he is willing to commit a crime to demonstrate that disagreement and to use his
elected office to encourage others to do the same. In fact, minutes after being convicted by a jury,
when asked whether he would do the illegal ride again, Mr. Lyman said, Yes.
Absolutely.
Yes.
KUTV News, http://kutv.com/news/local/san-juan-co-commissioner-blogger-
convicted-of-illegal-atv-ride (last visited Dec. 7, 2015). A period of incarceration and a term of

supervised release will promote respect for the law among Defendants and among those who
followed them.
Second, a sentence of incarceration will deter similar criminal acts.
Lest any
misunderstanding arise, the United States in no way seeks to impose a chilling effect on lawful
protests of federal action. Instead, the United States seeks to deter criminal acts; including crimes
that are committed under the pretext of a First Amendment protest. The First Amendment was
never intended to be used as the exception that swallows all other laws. See United States v.
Maldonado-Norat, 122 F.Supp.2d 264, 265 (D. P.R. 2000) (Supreme Court precedent makes it
pellucid that the principle of freedom of the press does not support the edifice that Defendants here
attempt to construct: freedom of the press to violate the law.). Instead, the First Amendment was
intended to preclude the government from abridging lawful speech, not to empower citizens to
commit crime. Indeed, if empowering citizens to commit crime is what the First Amendment has
come to mean, then the United States is no longer a nation of laws. United States v. Moylan,
417 F.2d 1002, 1008-09 (4th Cir. 1969)([E]xercise of a moral judgment based upon individual
standards does not carry with it legal justification or immunity from punishment for breach of the
law . . . . Toleration of such conduct would [be] inevitably anarchic.). Worse yet, accepting
24
such a theory of the First Amendment would legitimize even the most heinous acts against the
United States and its citizens that individuals and groups commit in protest of United States
policies. Given the high societal cost of indulging the commission of crime to show disagreement
with the law, incarceration is an appropriate penalty to deter Defendants and others from acting on
the mistaken belief that disagreement with the law entitles them to commit a crime.9
CONCLUSION
Based on the foregoing, the United States recommends that this Court impose upon
Defendants a reasonable term of incarceration given the nature of their offenses, their disrespect
for the law, and the need for deterring similar criminal acts. The United States also recommends
a term of supervised release and a fine based on Defendants ability to pay. In addition to, and not
in lieu of the foregoing, this Court should also order Defendants to jointly and severally pay
restitution in the amount of $95,955.61.
DATED this 7th day of December 2015.
JOHN W. HUBER
United States Attorney
/s/ Jared C. Bennett
JARED C. BENNETT
9
Defendants and those who wrote letters in support of them not being incarcerated all
claim that the reputation and financial harm from prosecution are punishment enough. However,
they ignore the Tenth Circuits clear holding that such factors are improper when considering a
punishment. United States v. Morgan, ___ F. Appx ___, 2015 WL 6773933, **14-23 (Nov. 6,
2015) (unpublished) (stating in a lengthy discussion that financial and reputational harm from
prosecution are inappropriate considerations in determining punishment and letters from
constituents encouraging such treatment are to be given little weight). Regardless of the alleged
stress or reputational and financial harm Defendants claim from prosecution, organizing a mass
crime against the United States should be deterred by some level of incarceration.
25
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Case 2:14-cr-00470-DN Document 216 Filed 10/09/15 Page 1 of 22

JOHN W. HUBER, United States Attorney (#7226)

IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH

UNITED STATES OF AMERICA,

Case No. 2:14CR470DN

Case 2:14-cr-00470-DN Document 216 Filed 10/09/15 Page 2 of 22

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1. Defendants cannot show that the 1979 map is evidence.

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2. Reading the 1979 map in isolation does not make it favorable to

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C. The 1979 Map is Not Material.

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court that an R.S. 2477 right-of-way exists in the Closed Area.4

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THE STATE OF UTAHS LETTER OF INTENT TO SUE THE UNITED STATES

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DATED this 9th day of October 2015.

Case 2:14-cr-00470-DN Document 216-1 Filed 10/09/15 Page 1 of 1

JOHN W. HUBER, United States Attorney (#7244)

IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH

UNITED STATES OF AMERICA,

Case No. 2:14CR470DN

PHILLIP KAY LYMAN & MONTE

Exhibit A: Declaration of Brian Quigley

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Document 216-2 Filed 10/09/15 Page 4 of 8

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From: Jared Stubbs [mailto:jstubbs@fslaw.com]

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Exhibit W4Case 2:14-cr-00470-DN

Document 216-9 Filed 10/09/15 Page 1 of 1

Illegal Ride Route

Bureau of Land Management (BLM)

Case 2:14-cr-00470-DN Document 228 Filed 10/22/15 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT