With less than three weeks before trial, defendants in San Juan County’s gate-closing case are now seeking a halt in the case pending an appeal to a pretrial order, a change of venue and the recusal of County Attorney Kendall Laws.
Wilderness advocate Rose Chilcoat and husband Mark Franklin face a May 23 trial in Monticello on felony charges that they tried to kill livestock when Franklin admittedly closed a gate to rancher Zane Odell’s corral in Bears Ears National Monument, west of Bluff, last year.
Prosecutors allege they closed the gate to block cattle from reaching water inside the corral, then filed a bogus complaint with federal land managers against Odell as a criminal act of retaliation. The couple, who live in Durango, Colo., reject the charges, noting the cows could access the water source because a portion of the corral fence was down.
In a flurry of recent motions, defense lawyers point to what they claim are defects in the case, starting with the lack of tangible evidence that the couple intended to harm cattle or even disrupt Odell’s operation when Franklin closed the gate while the couple stopped by en route to a weekend campout in the new monument.
Prosecutors’ primary evidence of Franklin’s guilt is his marriage to someone who was once the associate director of Great Old Broads for Wilderness, a Colorado-based group that advocates for protecting publicly owned wild lands from overgrazing, motorized use and the oil, gas and mining industries.
Defense lawyers say Odell’s cattle were never in danger and the case is instead a political vendetta. To rebut this argument, Laws intends to seek testimony from Jim Keyes, a Utah State University extension range beef cattle specialist knowledgeable in “bovine psychology.”
Keyes will offer expert testimony on what cattle would think upon encountering a closed gate.
“Cattle are creatures of habit, and would probably turn and travel to the last place they knew water,” Keyes wrote in court disclosures. “They would not necessarily nose around and find a hole in the fence.”
Defense lawyers argue that San Juan County is violating the couple’s First Amendment rights by using their associations and political views as evidence of criminal intent.
They also contend that Laws is under political pressure to take down Chilcoat, who is widely despised in San Juan County for her conservation advocacy that many see as a threat to the local culture, and that Laws had agreed to recuse himself from the case during an April 18 phone conversation.
Seventh District Judge Lyle Anderson has already overruled two other defense motions, one asking him to “quash” the couple’s bind-over for trial and another alleging prosecutors reneged on an agreement to dismiss charges against Chilcoat.
Anderson set a hearing for Wednesday to field arguments on other issues raised in the case.
In his latest ruling, the judge derided the defense motions as a “distressing waste of paper” — were it not for the state courts’ e-filing system — and admonished counsel on both sides to behave more civilly. He also instructed them to be available for telephonic conferences every day until the trial starts.
But defense lawyers Jeremy Delicino and Jon Williams, aided by former federal judge Paul Cassell and two other University of Utah professors, want the case stayed while they challenge Anderson’s earlier ruling to bind over the case. They also seek to have it tried in another county with a different prosecutor should that ruling survive appeal.
Last week, Laws dropped a felony retaliation charge against Chilcoat, but he objected strenuously to defense motions, particularly the move to get him removed from the case.
He complained that the defense is trying to “cherry pick” a prosecutor, even though defense lawyers had previously agreed that Laws would get to choose who would take over the case.
Laws contends vandalism has plagued San Juan County livestock operations and it has gone unpunished too long. One of his filings describes how ranchers “again and again” find gates left open or closed, plugs removed from water tanks, and cows and horses shot dead.
“That is the impetus behind this prosecution,” he wrote. “This prosecution was not commenced at the behest of a [county] commissioner with a grudge.”
That unnamed commissioner is Phil Lyman, who publicly blames Chilcoat for the closure of Recapture Canyon, a once-popular ATV destination just east of Blanding. Many residents believe Great Old Broads persuaded the BLM to prosecute two local men for building an unauthorized trail there and to jail Lyman and blogger Monte Wells for leading a motorized protest ride along that trail in 2014.
Lyman and Wells, both friends of Laws, who has publicly supported them, are now the principal proponents for the criminal charges against Chilcoat. They have claimed falsely on social media that she was caught “red handed” closing the gate and that she advocates environmentally motivated sabotage and the removal of livestock from public land.
Recent comments on Wells’ blog The Petroglyph and Lyman’s Facebook page proclaim Chilcoat a terrorist who should by lynched, according to a declaration filed by defense investigator Greg Rogers, a retired FBI agent.
“Play stupid games, win stupid prizes, String that bitch up,” wrote Ed Black in a May 2 post.
Such a hostile environment offers little chance for a fair trial, defense lawyers write in their motion filed Friday for a venue change.
They commissioned a Dan Jones survey that found intense dislike of Great Old Broads, as well as environmentalism and the BLM, among San Juan residents.
In March, the pollster queried more than 200 people in San Juan, Grand and Carbon counties each. About three-fourths of San Juan residents knew of Great Old Broads (GOB) and a majority held unfavorable views of the group, yet the group barely registered in Grand and Carbon, counties that are also in Utah’s 7th Judicial District.
“What’s beyond dispute is that not only is GOB well known in San Juan County, it’s also largely unpopular, a troubling conclusion given that a central issue in this case will be Chilcoat’s connection to GOB,” lawyers wrote in their motion.