Blanding • Just east of Blanding, White Mesa drops into a sandstone canyon dotted with juniper trees, home to ancient cliff dwellings. It’s a peaceful place most of the time, but over the past 15 years Recapture Canyon has become a flashpoint in San Juan County, the site of a high-profile armed protest and multiple criminal charges.
And, more recently, it has been a drain on county coffers.
According to documents obtained by The Salt Lake Tribune, San Juan County taxpayers funded a high-priced, San Diego-based attorney to fly first class and to look through archival newspaper clippings in an attempt to prove the county had title to a right of way through the canyon.
JW Howard Attorneys billed the county more than $360,000 from 2016 to 2018 to sue the federal government and assert quiet title to a 3-mile section of the route, charging $500 an hour for lead lawyer John Howard and several of his associates. The payments continued even after the case was consolidated in May 2018 with a similar case already brought by the Utah attorney general’s office and funded by the state.
In 2012, Utah sued on behalf of San Juan County for rights of way to more than 4,200 miles of what they argued were historic roads in the county, including many long-abandoned routes that run through national parks, monuments and wilderness study areas.
Under a statute known as RS 2477, counties and the state can claim rights of way for roads on federal land that were open to the public and used continuously for 10 years before the statue was repealed in 1976.
Steve Bloch, Southern Utah Wilderness Alliance (SUWA) legal director, said the state and county have not been shy about suing for RS 2477 roads, adding that many claimed roads are nothing more than stream bottoms, cow paths and dirt trails.
But Recapture Canyon was not listed in the 2012 suit, despite references to a road through the canyon from a 1924 map and in other historic documents, including mention of an RS 2477 route in the canyon in a 1981 Bureau of Land Management document.
After attorney John Howard’s efforts, the Recapture Canyon route was added to the state’s suit in 2018. It is not expected to be heard in court for years.
“Howard was worth every dime,” said state Rep. Phil Lyman, R-Blanding, who signed the original contract with Howard in January 2017, when Lyman was chairman of the San Juan County Commission.
“I would say we had a victory,” he added, referring to the fact that Recapture has now been added to the 2012 suit.
Lyman acknowledged Howard’s services were costly, however. “Every invoice your head spins at the hourly rates, but that’s what they charge,” Lyman said. “There was no deception in it.”
“Lawyers are pretty expensive, aren’t they?” agreed Commissioner Bruce Adams, a Republican who has served on the commission since 2004.
Howard declined to comment for this article.
The original contract clearly states Howard’s rates and outlines additional fees the county will be responsible for, including first-class airfare.
Bloch, who has been involved in SUWA’s move to intervene on the side of the federal government against the state’s RS 2477 claims, questioned whether a high-priced attorney was necessary.
“This was not rocket science for Howard to come up with a separate complaint for Recapture Canyon. That’s what the state and the counties have been doing for the past 10 years is filing these complaints,” Bloch said. “It’s not like he was reinventing the wheel.”
The county did approach the Utah attorney general’s office multiple times, according to Lyman, to request that it sue for the title to the Recapture right of way, but those efforts were unsuccessful until Howard got involved.
The route in question is just miles from Blanding, the county’s largest town. Lyman describes it as “about three miles long,“ extending from the Recapture Reservoir dam to where a pipeline exits the canyon.
The Recapture claim was extraordinarily expensive in comparison to others. If the same cost per mile had applied to all 4,200 miles in state claims in San Juan County, it would add up to a staggering $500 million.
Wayne Hoskisson, a member of the Sierra Club’s Glen Canyon Group Executive Committee, called San Juan County’s battle for Recapture “a bit of Don Quixote move, charging after phantasms and the like.”
RS 2477 claims “are not holding up well in the courts, and I don’t think [most] ever will,” Hoskisson said. “Why [San Juan County] would choose to pursue something so expensive is amazing.”
BLM vs. county
To understand the importance of the Recapture right of way to the county, Lyman said, you have to go back to 2007, when the BLM closed an all-terrain vehicle trail that was being improved by local riders. The agency found off-highway vehicles were damaging cultural sites in the canyon.
Years later, residents Kenneth Brown and Dustin Felstead were charged with damaging archaeological sites while working on the trail without federal approval in 2005. Together, they were fined $35,000 and sentenced to probation.
After a two-year undercover operation, more than 20 people were arrested in a single morning when nearly 100 heavily armed agents are reported to have raided homes across the town. The action, which has been widely criticized, has been associated with the subsequent suicides of three people, including a well-respected area doctor who had a collection of ancestral Puebloan artifacts in his home and was enticed into black market dealing with an informant.
Lyman said the raids and the charges brought against Brown and Felstead were examples of federal overreach by the BLM, and those events contributed to Lyman’s decision to organize an ATV protest ride in 2014 in Recapture Canyon.
He was charged with two misdemeanors after the protests. Lyman spent 10 days in jail and, together with a co-defendant, was fined $96,000 in restitution — money he’s still paying off.
Lyman said the media has since inaccurately portrayed him as an ATV enthusiast despite not owning an ATV, and as an anti-government activist, even though he calls himself “a huge supporter of a strong central government” under ideal conditions.
“I’m a decent person. I’m an intelligent person. I’m an educated person,” he said. “And none of those fit the narrative that [news media such as] The Salt Lake Tribune has about me.”
It was around the time of the protest when Lyman first met Howard at a conference. Lyman refers to him as a “legend” in the public lands world, although Howard’s website bio does not mention public lands as one of his specialties.
It wasn’t until Lyman read an article Howard co-wrote in the conservative National Review magazine in August 2016 that Lyman moved to hire him on behalf of the county.
In the op-ed, Howard and New Orleans-based attorney George Wentz argued people in Western states are relegated to a second-class citizenship status because of the amount of public land under federal control. Portions of the piece read as though they were written directly to Lyman, and the authors made repeated references to San Juan County.
“A county sheriff in New York who raided homes or arrested a county commissioner would quickly be voted out of office,” Howard and Wentz wrote, referring to Lyman’s protest in Recapture and the 2009 antiquities raids. “The citizens of San Juan County have no such recourse. … They must fight the full weight and unlimited resources of the federal government.”
Lyman shared the article on his public Facebook page and sent Wentz an email soon afterward.
Four months later, Wentz and Howard flew first-class to San Juan County to meet with officials and visit Recapture Canyon. The lawyers billed $17,000 for the visit under Howard’s firm even though a contract had not yet been signed by Lyman and wouldn’t be for another month.
Lyman previously had signed a contract with Wentz’s firm, Davillier Law Group, to lobby for the reduction of Bears Ears National Monument and to fight for a right of way to an ATV trail in Indian Creek.
Together, Davillier and Howard ended up charging county taxpayers close to $1 million during the following two years.
Before writing the op-ed, both attorneys were hired by the state of Utah to analyze whether the federal government had legitimate claims to manage federal lands through the Forest Service and the BLM. (Most legal experts agree that the federal government does have that right, and Howard and Wentz estimated it would cost the state $14 million to bring the case to the Supreme Court.)
Wentz and Howard came under criticism for their work with the state in 2016 after they invoiced expensive meals, flights and bar tabs, the latter of which violated state law.
Lyman, who works as a certified public accountant in Blanding, said he was not concerned about the possibility of similar violations when he hired Wentz and Howard for the county.
“When [prominent lawyers] take an interest and say that constitutionally you’ve got a good position, that carries a lot of weight for me,” he said. “I was very committed to having them do their job and spending whatever it took.”
While Lyman was committed to the causes propelling the county’s efforts involving Bears Ears and Recapture, both legal battles were initiated and carried out largely behind closed doors. The Tribune was unable to locate any vote or discussion in meeting minutes of the contracts signed to hire Howard or Davillier, which required retainers of $15,000 and $10,000, respectively.
Lyman couldn’t recall whether votes had taken place in public meetings, but he said County Attorney Kendall Laws may have advised the commission not to discuss the legal matters at meetings.
Laws, a Democrat first elected in 2014, doubted that’s what happened. “There would be no reason for me to advise [the commission] of that,” he said.
County policy typically requires public notice of any procurement of more than $5,000, and most contracts over $1,000 require competitive bidding, but there is no explicit rule requiring the commission to formally approve contracts.
In May 2018, when the case was consolidated with the state’s larger RS 2477 suit, Lyman and Adams told the Four Corners Free Press that they were concerned the county could go bankrupt, in part from legal expenses. Nonetheless, Howard continued working on the case until last November, including taking preservation depositions from San Juan County residents about the history of the route.
Howard routinely billed his full rate for work that didn’t appear to require legal expertise, such as analyzing historic maps and reading archival newspaper articles.
He also had repeated contacts with the Utah attorney general’s office and then-Rep. Mike Noel, whom Lyman replaced in the Legislature in January, and the Alaska attorney general’s office, which, according to billings, assisted in the “preparation of exhibits for Recapture Road.”
Howard made at least one trip to San Juan County after the cases were consolidated. On July 17, 2018, he spent three hours flying from his home in San Diego to Salt Lake City and charged his full rate of $500 an hour.
Several days later, Howard slightly reduced his rate when he drove to Blanding, charging $1,860 for a drive that typically takes five hours. He invoiced $5,500 for 11 hours of work conducting interviews and making site visits July 20. He then charged for the return drive and flight to San Diego.
In total, the trip cost San Juan County taxpayers nearly $20,000. Between flights, Howard invoiced $950 to stay in a Salt Lake City hotel for four nights but billed for only a half-hour of work while he was in the city. (In 2016, the Campaign for Accountability found Howard billed the state for expensive hotels on days when he was not billing for legal work.)
Laws, who reviewed and signed off on the invoices, said he recalls Howard trying to cut the county slack on some expenses. It’s possible that Howard did more than a half-hour of work over the course of his stay in Salt Lake City but decided not to invoice the county, Laws ventured, though he couldn’t remember the specifics.
Draining the budget
San Juan County is the poorest in the state with a poverty rate of 26%, according to the U.S. Census Bureau. The county’s general fund — which also functions as its “rainy day” fund — had close to $10 million in 2015. By last year, it had dropped to $2.5 million.
Over that same four-year period, the county spent $3 million on outside legal counsel in addition to $1.1 million on the county attorney’s office, a trend first reported in the San Juan Record. Additionally, the county could face over $3 million in attorney fees and costs from a voting rights lawsuit initiated by the Navajo Nation in 2012 that ended with court-ordered redistricting and a special election that led to San Juan’s first Navajo-majority County Commission.
Adams, who still sits on the commission, pointed out that lead attorneys for the Navajo Nation, Steven Boos and Eric Swenson, requested a rate of $415 an hour, but those fees have yet to be awarded by the court.
Adams went on to say hiring Howard was worth it.
“I just wish so many people hadn’t sued the county, and it hadn’t cost us so much to defend ourselves,” he said. Adams characterized the Recapture suit as legal defense because the BLM refused to open the canyon to motorized use.
Commissioner Willie Grayeyes, a Democrat elected last year, mentioned the possibility of higher property taxes at a June commission meeting and said he is concerned about the county’s financial stability. He called the drained general fund “the sins of the [previous] commission.”
“We inherited it,” Grayeyes recently told The Tribune, “[and now] we have to answer for it."
Zak Podmore is a Report for America corps member and writes about conflict and change in San Juan County for The Salt Lake Tribune. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today.