Utah’s Phil Lyman weighs appeal of sentence in ATV protest ride

Criminal defendants lose appeals 85 to 90 percent of the time, says U. law professor.

Al Hartmann | The Salt Lake Tribune San Juan County Commissioner Phil Lyman, middle, walks to sentencing hearing in Federal Court in Salt Lake City Friday Dec. 18. He faces up to one year in jail for his role in organizing, promoting and leading the 2014 ATV protest in Recapture Canyon.

Phil Lyman said he's considering an appeal of a conviction that led to a 10-day prison sentence for his role in an ATV protest ride through a closed canyon, but he also said he thought the judge's sentence last week was thoughtful and considerate of the facts and situation.

The San Juan County commissioner told The Associated Press on Monday that he was impressed that U.S. District Judge David Nuffer considered the realities of living in rural Utah in making his ruling Friday.

"You could tell he had actually considered the realities of what was taking place down here," Lyman said. "To me, that was very gratifying. I was genuinely moved by his comments."

Lyman called it a relief to finally learn his sentence — seven months after a jury found him guilty of misdemeanor illegal use of ATVs and conspiracy. He was given three years of probation and a $1,000 fine in addition to $96,000 he was already ordered to pay for damage caused by the ride. He was allowed to report for his prison stint at a later date.

"I was glad to come home on Friday," said Lyman, a married father of five who works as an accountant in the small town of Blanding. "I wasn't sure that would be the case."

Lyman, who has a couple of weeks to decide about an appeal, said he'll depend on his attorney's analysis of legal factors in making a decision about an appeal. His lawyer, Peter Stirba, wasn't immediately available for comment Monday.

If he does decide to challenge the sentence, Lyman may be able to get financial help from conservative backers who consider him a symbol for rural residents struggles against an overreaching federal government.

Several Utah officials have stepped up to support Lyman's stance, including Gov. Gary Herbert. Earlier this year, state lawmakers donated several thousand dollars of their own money to help pay for his legal defense during a public hearing.

One of Lyman's biggest supporters, Kanab Republican Rep. Mike Noel, said he's talked with Lyman and that an appeal is very likely. They've got enough private funds lined up to foot the bill, and much of the work has been done already by Stirba as he prepared for sentencing, Noel said.

The cost of appealing a federal case to the 10th U.S. Circuit Court of Appeals generally ranges between $50,000 and $100,000, said University of Utah law professor Paul Cassell.

The chances of succeeding on appeal, meanwhile, aren't high. Criminal defendants lose their appeals 85 to 90 percent of the time, Cassell said.

Noel recognizes the odds but said it's important to establish precedent that the federal government does not have the authority to close trails that are part of roads constructed under a law from the 1800s known as RS 2477. Noel said he hopes the state of Utah will file a friend-of-the-court brief to support the case.

"It's a long shot, there's no question about it," Noel said. "But I think there's merit in it."

Utah U.S. Attorney John Huber said Friday he was satisfied with the sentence, saying 10 days in jail is enough to send a message that his office will prosecute all violations of federal law — no matter where a person falls on the political spectrum. Huber said he would need to assess an appeal, but he said his office likely would defend the conviction and sentence.

The ride took place in May 2014 in an idyllic spot called Recapture Canyon in the Four Corners region, about 300 miles southeast of Salt Lake City. The protest was organized shortly after Nevada rancher Cliven Bundy had a standoff with the Bureau of Land Management over similar issues. Prosecutors said Lyman recruited people for his ride who had taken up arms in that faceoff.

Lyman and his attorney say the ATV ride was a peaceful way to bring attention to frustrations from him and his constituents about years of inaction by the federal government.

Lyman and about 50 others rode their ATVs on a trail that was declared off-limits to vehicles to protect ruins that are nearly 2,000 years old. The decision to block vehicles in the area has long been a source of tension, with Lyman and others calling it improper and unnecessary.

The protests in Utah and Nevada showcased the strain between the federal government and residents in the West over land use. Disagreements over grazing, drilling and protecting rare animals on the range have led several states to push for more control over vast swaths of federally owned land.

Lyman called the Friday sentencing hearing "an amazing day" that gave him hope something positive could come from the situation.

In an impassioned speech at the end of the hearing, Judge Nuffer implored people on all sides of the federal land management debate to ratchet down the emotion and seek sensible solutions. He made it clear he wasn't trying to influence a decision about an appeal.

"More important than politics are people. We are all people," Nuffer said Friday. "Can we reduce conflict and hostility? Can we stop emulating the people we see on television and the national politicians? ... If we don't ratchet down the emotion and negative qualities, we will do serious damage. This is a great time of year to examine ourselves and make changes for the betterment of our community."

In Lyman's interview with The Associated Press, he clarified his feelings on the divide.

"We agree on 95 percent of this stuff; it's just the 5 percent we tend to focus on and make these big issues out of," Lyman said. "It's not productive. It doesn't achieve what it is that we're hoping to achieve. We all hope for something that is more functional."

The Salt Lake Tribune contributed to this report

Al Hartmann | The Salt Lake Tribune San Juan County Commissioner Phil Lyman walks to sentencing hearing in Federal Court in Salt Lake City Friday Dec. 18. He faces up to one year in jail for his role in organizing, promoting and leading the 2014 ATV protest in Recapture Canyon.