Under a ruling from the Utah Court of Appeals, a Colorado man will be tried on felony and misdemeanor charges arising from a gate-closing incident at a San Juan County livestock corral, but the court signaled it may summarily throw out the charges against his wife, a prominent wilderness advocate.

A key piece of evidence leveled against Mark Franklin is his marriage to Rose Chilcoat, which San Juan County prosecutors contend indicates he intended to harm cattle when he admittedly closed the gate to a corral that enclosed a water source.

That’s a laughable theory and an insult to the First Amendment’s protections of free speech and free association, argued the couple’s appellate lawyer, Paul Cassell, at a hearing before a three-judge panel July 9.

Franklin and Chilcoat, who live in Durango, were camping in what was then the southern part of Bears Ears National Monument when Franklin closed the gate in a move prosecutors say was calculated to keep the cattle from a watering trough. Franklin told investigators he meant no harm to the cows, pointing out a 10-foot breach in the corral fence that allowed them to move in and out freely.

He and Chilcoat were headed to trial last month but sought appellate intervention, prompting the July 9 hearing. The three-judge panel rejected the petition for Franklin, but took a different tack for Chilcoat.

“There seems to be no case against her, no probable cause,” said Judge Gregory Orme. “Maybe the state will come up with something between now and then [the trial], but it seems they have precious little against her, as opposed to [Franklin], to warrant bind over.”

Soon after the hearing, the appellate court moved to summarily dismiss the charges against Chilcoat, a former national park ranger who later served as associated director for Great Old Broads for Wilderness. The group has been criticized by San Juan County officials, who see its wilderness advocacy as a threat to ranching and access to public lands.

The state has until July 31 to make its case to the court on why it should not dismiss the charges against her. The attorney general’s office declined to comment.

Chilcoat’s supporters view the couple’s prosecution as an abuse of the criminal justice system for political purposes, calculated to punish Chilcoat for her advocacy and deter others from keeping an eye on public lands cattle operations.

Arguing for the state, John Nielsen, an assistant solicitor general, rejected that narrative.

“It doesn’t chill political activity, it chills criminal activity,” he told the court. “They aren’t being prosecuted for their views; they are being prosecuted for their actions. Their views are relevant to show the intent for which they took those actions."

In the meantime, 7th District Judge Lyle Anderson, who ordered Chilcoat and Franklin to stand trial, has retired from the bench. To succeed Anderson, Gov. Gary Herbert nominated Moab-based contracted public defender Don Torgerson, who received a favorable review Friday from the Senate Judicial Confirmation Committee.

The case also has been transferred to Carbon County. No trial date has been set.