Recapture Canyon case costs San Juan County $440,000

(Trent Nelson | Tribune file photo) Ryan Bundy, son of the Nevada rancher Cliven Bundy, rides an ATV into Recapture Canyon, which has been closed to motorized use since 2007, after a call-to-action by then-San Juan County Commissioner Phil Lyman on Saturday, May 10, 2014, north of Blanding.

Monticello • On Dec. 5, one day after the San Juan County Commission held a Truth in Taxation hearing to raise its share of property taxes by nearly 15%, the county wrote a $94,000 check to a high-priced law firm hired years ago by a previous administration and still doing work to the surprise of some current leaders.

The recipient was San Diego-based law firm JW Howard Attorneys, whose work to sue the federal government over a controversial county-claimed route in Recapture Canyon near Blanding has now rung up a total tab of $440,000.

The tax increase, by contrast, is expected to bring in an additional $289,000 annually to the county’s general fund, increasing the property tax burden in San Juan County, which is already the highest in the state.

Lead attorney John Howard charged $500 per hour for his work, regularly expensed first-class flights and last summer charged the county $150 for the 18 minutes it took him to read a previous Salt Lake Tribune story on his taxpayer-funded legal bills, plus $50 for emailing a one-word reply, “no,” to a request for comment.

(Screenshot) An August 2019 email exchange between The Salt Lake Tribune and attorney John Howard for which Howard charged San Juan County taxpayers $50.

Few within the county seemed to know that Howard — hired in 2016 by then-County Commissioner, now state Rep. Phil Lyman — continued working all through 2019. Two Democrats, both members of the Navajo Nation, were elected to the commission in a court-ordered 2018 special election that ended the long-running Republican majority.

“The new County Commission came into 2019 with other priorities and Recapture [Canyon] wasn’t one of them,” said County Attorney Kendall Laws, a Democrat who had regular contact with Howard over the past three years. “[The Recapture case] continued forward because no position was taken by the new commission that was contrary to that of the previous commission.”

County Commissioner Kenneth Maryboy said he was surprised by the $94,000 charge, noting that he had tried several times to get clarity on the county’s legal entanglements after being elected in 2018.

“I wasn’t even aware of it,” Maryboy said. “This is something that makes me feel like I’m being undermined.”

Litigation inventory

Maryboy and fellow Democratic Commissioner Willie Grayeyes requested that county officials prepare “a litigation inventory, listing all cases in which the county or any of its officials or employees is currently a party or in which the county seeks to be a party” as one of their first actions after the 2018 election.

Litigation costs were a serious concern. From 2015 to 2018, the county’s general fund had dropped from $10 million in reserves to $2.5 million, at least in part because the county was mired in numerous legal battles, including several suits related to federal lands issues such as Bears Ears National Monument. And there was a pending bill for plaintiffs’ fees in a suit that the Navajo Nation brought against San Juan County under the Voting Rights Act in 2012. (It eventually cost the county $2.6 million.)

Despite the millions of dollars the county was paying to outside legal counsel, most of the contracts were never approved in open public meetings. Howard’s 2016 contract and initial $15,000 retainer fee, for instance, were signed only by Lyman and do not appear in commission meeting minutes.

(Zak Podmore | Tribune file photo) San Juan County Commissioner Kenneth Maryboy (left) speaks to the press in Window Rock, Ariz., with Navajo Nation President Jonathan Nez and former President Peterson Zah on Oct. 29, 2019.

Laws responded to Maryboy and Grayeyes’ request for a litigation inventory on Nov. 27, 2018, saying he could provide the inventory, but it “may take me a few days.”

More than two months later, the inventory still hadn’t been produced. So, on Feb. 15, 2019, the commission unanimously passed a resolution formally directing Laws to complete the inventory. Due to delays in getting the item on the commission’s meeting agenda, the deadline specified in the resolution had already passed.

Once again the inventory failed to materialize and over the next two months, tensions heightened between the county attorney and the new commissioners. Grayeyes and Maryboy were seeking legal advice from a private attorney, Steven Boos, including on the litigation inventory resolution, and, on April 2, Maryboy introduced a resolution to sue Laws for, in part, failing to carry out the commission’s directives on the inventory.

Before the resolution went to a vote and nearly five months after they’d first requested the inventory, Laws handed the commissioners hundreds of pages of invoices and a spreadsheet summarizing the county’s legal entanglements.

Grayeyes then moved to table the resolution to sue Laws, and it never was reconsidered.

Recapture background

Laws’ spreadsheet included short summaries for each case, indicating that most of the litigation was nearing completion and would not cost the county significant sums. With regard to Howard’s work on Recapture Canyon, Laws wrote, “San Juan County filed an RS 2477 lawsuit in order to get a road added to the RS 2477 list,” referring to a long-repealed law that allows counties and the state to claim rights of way for roads on federal land that were open to the public and used continuously for 10 years prior to 1976.

(Courtesy of Southern Utah Wilderness Alliance) Red lines depict more than 4,200 miles of RS 2477 routes claimed by the Utah Attorney General's Office on behalf of San Juan County in a 2012 lawsuit. The original suit did not include a claim in Recapture Canyon.

“The case was then consolidated (San Juan stipulated to the consolidation) into the larger state of Utah case [in May 2018],” Laws’ summary continued. “[San Juan County] is just finishing up research to hand over to the state of Utah and then the case will be in the state’s hands entirely.”

In 2012, Utah sued the federal government 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, though Recapture Canyon wasn’t included.

The attorney general’s office, which is overseeing and paying for the case, is seeking RS 2477 claims on roughly 35,000 miles of routes statewide, the first of which is currently being heard by a federal judge in Kane County. Howard’s work was wildly expensive compared to other routes being tried. If the state had to pay the same per-mile rate for preliminary research into all the claims included in the litigation inventory as San Juan County paid for the 3-mile Recapture Canyon route, it would cost taxpayers $5.1 billion, more than a quarter of the state’s entire annual budget.

Despite the judge consolidating San Juan County’s Recapture Canyon claim with the state’s already extensive RS 2477 suit in May 2018, Howard continued billing the county to conduct interviews and complete other research to hand over to the attorney general’s office that could be used in a future trial.

Last year, Lyman called Howard’s work a “victory” because of the state’s agreement to take on the claim as part of its larger case. It was, he said, “worth every dime.”

The Recapture Canyon claim has become a personal cause for Lyman, who, acting as his own attorney, sued the federal government in November in a separate but related case. He is seeking $10 million in damages on claims that Bureau of Land Management officials, environmental groups and news media organizations secretly collaborated to ruin his reputation in connection with a 2014 ATV protest ride he led into the canyon, leading to his 10-day jail sentence and $96,000 fine.

(Francisco Kjolseth | Tribune file photo) Rep. Phil Lyman, R-Blanding, asks Sen. Mitt Romney about efforts to change the Antiquities Act during a meeting with state lawmakers at the Utah Capitol on Feb. 21, 2019.

13-month pause in billings

In July, The Tribune filed an open records request for a copy of the civil litigation inventory Laws prepared for the commissioners in April and later reported on the invoices Howard billed the county from 2017 through most of 2018.

Howard submitted bills every few months throughout that period and totals ranged from $2,500 to $37,000. The last charge in the inventory was Nov. 30, 2018, three days after Laws first agreed to compile an inventory in the wake of Maryboy and Grayeyes’ election.

Howard’s pattern of billing changed drastically after that date. He did not submit another invoice to the county until Dec. 5, 2019 — the whopping $94,000 charge for 13 months of work, bringing Howard’s total cost to the county to $440,000.

Laws acknowledged in a recent email interview that by the time he prepared the inventory, “the county had already incurred over $42,000 of the ultimate $94,000 from 2019.”

But, Laws said, the 13-month lag between billings did not strike him as unusual. “I don’t look so much at the frequency of the bills as I do the work completed in the bills for accuracy and activity level.” The county attorney added that Howard’s overall activity slowed in 2019 compared with the previous year and a large portion of the payment was disbursed to subcontractors.

It appears that only a few San Juan County leaders were aware Howard’s meter was still running at $500 per hour through most of 2019. David Everitt, who served as interim San Juan County administrator from May to September and gave a presentation on the county’s high legal bills to the commission in July, said the Howard case “wasn’t on the radar at all” during his tenure.

“I was always very much under the impression that because it had been folded [into the state’s case] we were done paying entirely,” Everitt said. “It was never a question.”

Request for a bailout

Maryboy said he had several conversations about Recapture Canyon with Lyman and Laws in 2019, but, like Everitt, he was under the impression the case was essentially over.

“I just don’t feel that I was given enough information to say that, ‘OK, well, let’s come up with the money and pay the bill,’” Maryboy said. “Every case should be settled, but there’s things out there that just kind of surprise you, and I don’t like that.”

Laws said the commissioners “were educated about this case” when he gave them the inventory in April, and they never requested a follow-up report. If the commissioners had asked him to end Howard’s contract, Laws continued, he would have advised against it, “considering how much had been completed on the matter and how close it was to being finished.”

Grayeyes was unfamiliar with the details of the Recapture Canyon lawsuit and the $94,000 charge, but he said he recalls agreeing to let Howard finish his work since it was an “ongoing case.”

Commissioner Bruce Adams, a Republican who has served on the County Commission for over a decade, said he was not concerned by the large bill in December nor by the big gap between invoices. “There was still some work to do, I guess,” he said.

Adams has been working to get the county some relief from the state with regard to the legal expenditures. Last month, he took a trip to Salt Lake City to request the state’s Constitutional Defense Council (CDC) — a body that coordinates efforts to assert the state’s interests in federal land management — chip in $180,000 to help cover the county’s legal costs on the Recapture Canyon case. Lyman, who signed the original contract with Howard, sits on the CDC board.

The state assistance requested must be reviewed by the Utah attorney general’s office to determine whether the expenses advance a state interest and the costs are “reasonable.”

Neither Howard nor Laws replied when asked whether Howard is still billing the county.

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 by clicking here.