Constitutional Defense Council Declines to Use Public Money to Pay Legal Fees for Embattled County Commissioner

Who says a public outcry can’t make a difference?

Or the threat of lawsuits?

Or an upcoming election?

After a closed meeting Wednesday, the state’s Constitutional Defense Council and the Utah Association of Counties came to an understanding:

The state WILL NOT spend $100,000 of CDC money to defend San Juan County Commissioner Phil Lyman, should he decide to appeal his recent conviction in federal court for leading an ATV ride on a dirt road closed to such activity by the Bureau of Land Management.

Instead, any number of Lyman supporters – including GOP Gov. Gary Herbert – will donate private money to Lyman personally for his appeal and his trial costs.

Herbert, who seeks re-election in 2016, will donate $10,000 to Lyman, said Lt. Gov. Spencer Cox, who chairs the CDC.

The $10,000 check will be written from Herbert’s political action committee, not personal funds, gubernatorial aides told UtahPolicy.

Former GOP legislator, current president of the Utah Association of Counties, Kerry Gibson, a Weber County commissioner, told UtahPolicy that he had the votes on the CDC to provide UAC with the $100,000 requested to defend Lyman.

But after the closed session – in which Assistant Attorney General Tony Rampton briefed council members about the legal implications of the state getting involved in an individual’s criminal conviction appeal – Gibson and his fellow UAC members present decided to withdraw their official request for the $100,000.

So the CDC, their membership here, never took a vote.

Marty Carpenter, spokesman for Herbert, gave the following comment to UtahPolicy:

“The governor did not instruct the Lt. Governor to oppose the measure (the $100,000 Lyman donation), but the Lt. Governor has done a lot of work to help resolve the situation and we are pleased with the way it has turned out.

“The Lt. Governor and Rep. (Mike) Noel had been in discussions over the past few day about ways to resolve this situation without using taxpayer funds and that would not trigger additional litigation. My understanding is they met with representatives from the UAC during the closed, executive session where they discussed the reasons to go the route of raising private funds and UAC agreed.” 

That doesn’t mean Utah public officials are giving up on suing over, or appealing, federal public land cases, said Gibson, Cox, and other state officials.

But that financial support will come in civil, not criminal, cases against federal land managers.

And it means for now Lyman will have to fund raise money for his own appeal.

In fact, the public portion of the meeting turned into an odd religious-like Lyman confessional, as county official after county official came to the podium and plunked down thick wads of cash – all donated to help Lyman’s trial costs and his appeal.

Interestingly enough, some rural Lyman supporters had hundreds of dollars (one even $1,000) in cash, slapped down on the podium.

Note to political candidates: Don’t discount fund raising in rural Utah, there’s gold in them thar hills if you know where to look.

The amount Lyman needs is unclear.

Lyman told an impromptu press conference, conducted while the CDC closed it meeting to discuss possibly being sued by unhappy taxpayers if the CDC gave the $100,000, that he may not even appeal his federal court criminal conviction.

It all depends on his sentence, he said.

Lyman even admitted that his criminal case may not be the best avenue for Utah state officials to make legal inroads into various court battles over state rights and federal public lands.

Lyman, convicted in a May federal jury trial, is set to be sentenced in mid-July for his May 2014 public protest off-road vehicle ride up a part of Recapture Canyon in his county – a road the BLM “illegally” closed, claims Lyman’s friend and advocate Rep. Mike Noel, R-Kanab.

Lyman could face months in jail and tens of thousands of dollars in fines. Or he could get probation and much smaller fines.

 Noel, vice-chairman of the CDC, told the open part of Wednesday’smeeting that it was his idea to provide taxpayer money to Lyman’s defense/appeal.

Lyman “has never asked for a cent” in financial support from the state, said Noel.

In a previous public meeting on the issue, Noel told the Committee of Stewardship of Public Lands that he wants to provide Lyman up to $100,000 of CDC monies to Lyman.

But, says Noel, it is not really a fight to overturn a convicted criminal’s sentence. Rather, the Lyman case – with all of its injustices, says Noel – is “very” closely related to Utah’s continued court fights, along several fronts, for state rights against federal land managers.

Ultimately, Utah GOP lawmakers and Herbert want to get state control of millions of acres of federal Bureau of Land Management and U.S. Forest Service lands in Utah.

And Noel believes taking up the Lyman appeal may very well help that cause legally.

But House Democratic Leader Brian King, D-Salt Lake, an attorney himself and CDC member, lambasted Noel and the whole idea of the Lyman appeal.

Hinting at what the CDC’s attorney would say in the closed part of the meeting, King said the state paying taxpayer dollars for the appeal of a convicted criminal would be an historic mistake, and an unprecedented step by the state and CDC.

The CDC is supposed to take on civil cases, said King, cases brought by the state itself.

That’s why, to get around that complaint, the CDC considered not giving money to Lyman himself, but to the Utah Association of Counties, who in turn would decide how to help Lyman.

King and Noel had some sharp exchanges, with at one point Noel saying that King “was a mean attorney.” King is related to Lyman – they are distant cousins – and Noel said King “was even a mean attorney to your family, your cousin.”

King predicted any number of lawsuits over the matter.

When the CDC closed the meeting to the public and press, KUER reporter Judy Fahys tried to complain that the meeting was improperly being closed. Cox called her out of order, saying he’s been getting dozens of emails and phone calls threatening lawsuits, which allows for closing a public meeting under the Open Meetings Act.

Later, Cox said if the CDC wanted to give Lyman money, threatened lawsuits would delay the cash getting to Lyman and his appeal – thus defeating one of the main goals of giving Lyman money in the first place.

King said getting Utah involved in a criminal appeal could even harm the state’s chances down the road of success in much-needed civil cases against federal land managers.

The debate showed the emotion in rural Utah’s fight against federal land managers, and anger at the U.S. Attorney’s Office, which prosecuted Lyman.

One county commissioner said Lyman being charged at all was just the federal bureaucracy getting back at someone over the Cliven Bundy standoff in Nevada last year.

Another county commissioner said: “It’s become a fistfight (between local officials and federal land managers); and there’s a war going on over public lands.”

Democratic attorney Pat Shea, who ran for the U.S. Senate years ago, said instead of Lyman organizing an ATV ride in an area closed by the BLM, he and other officials could have just sued the feds over the road closure.

That would not have risked prosecution, said Shea, or even some kind of standoff where “blood” could have flowed.

Noel and others contend the BLM had no legal right to close a Title V road, with clear access by various officials, including the San Juan Water Conservancy (there’s a 21-inch water pipeline buried in the Recapture Canyon road, which has been used by locals since the 1860s).

“I don’t want this whole issue of (illegally closing) Title V right of ways lost in this morass of this public issue and public funds,” said Noel.

But it was clearly headed that way.

Cox said the governor’s office has been receiving thousands of phone calls and emails, with many threats of lawsuits if public taxpayer funds were used to defend Lyman on his criminal conviction.

Noel said Lyman was a wonderful public servant, a fine family man who has been greatly abused by federal prosecutors and a judge that wouldn’t allow critical defense information to be given to the jury.

“Phil doesn’t even own an ATV,” said Noel.

Lyman organized the ride into Recapture Canyon solely to protest the illegal closure, and had acted as a dedicated county commissioner trying to protect his people and their traditional use of public lands, said Noel.

The Lyman matter is not at all finished.

It was hinted by several state officials that future Legislatures may want to take up defense of individuals who fight for public lands access.