full lyman & other vs federal government trial 2015
DESCRIPTION
Full transcript of the federal trial against Lyman, Wells, Holiday, and Marian: casenumber 2:14-CR-470."It is a legalclosure. This road is closed by the BLM legally and lawfullyfor purposes of this trial. The Tenth Circuit may disagreewith me, and you can take it up with them if you wish. Thatis not an issue for trial. It's closed." Judge Shelby The county road in question has a 40 year right of way granted to San Juan County that has not expired. The BLM allowed continual use of this same road to San Juan County, Mining, heavy equipment, and cattle grazing. The road in question has never been closed nor is it closed today.TRANSCRIPT
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
______________________________________________________________
UNITED STATES OF AMERICA, CASE NO. 2:14-CR-470
PLAINTIFF,
VS.
PHILLIP KAY LYMAN; MONTE SALT LAKE CITY, UTAHJEROME WELLS; SHANE MORRIS APRIL 29, 2015MARIAN; AND FRANKLIN TRENTHOLLIDAY,
DEFENDANTS.
______________________________________________________________
JURY TRIALBEFORE THE HONORABLE ROBERT J. SHELBYUNITED STATES DISTRICT COURT JUDGE
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APPEARANCES:
FOR THE PLAINTIFF: UNITED STATES ATTORNEY'S OFFICE BY: JARED C. BENNETT, ESQ. LAKE DISHMAN, ESQ. 185 SOUTH STATE STREET, #300 SALT LAKE CITY, UTAH 84111 (801) 524-5682
FOR DEFENDANT LYMAN: FILLMORE SPENCER, LLC BY: JARED B. STUBBS, ESQ. 3301 NORTH UNIVERSITY AVENUE PROVO, UTAH 84604 (801) 426-8200
FOR DEFENDANT WELLS: SNOW, CHRISTENSEN & MARTINEAU BY: NATHAN A. CRANE, ESQ. 10 EXCHANGE PLACE, 11TH FLOOR SALT LAKE CITY, UTAH 84111 (801) 521-9000
FOR DEFENDANT MARIAN: GARRETT & GARRETT BY: JAMES D. GARRETT, ESQ. 8 EAST BROADWAY, SUITE 615 SALT LAKE CITY, UTAH 84111 (801) 581-1144
FOR DEFENDANT HOLLIDAY: BY: SHARON L. PRESTON, ESQ. 670 EAST 3900 SOUTH, SUITE 101 SALT LAKE CITY, UTAH 84107 (801) 269-9541
COURT REPORTER: RAYMOND P. FENLON 351 SOUTH WEST TEMPLE, #7.430 SALT LAKE CITY, UTAH 84101 (801) 809-4634
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I-N-D-E-X
PLAINTIFF'S OPENING STATEMENT.........................PAGE 18
DEFENDANT LYMAN'S OPENING STATEMENT...................PAGE 26
WITNESS EXAMINATION BY PAGE NO.
JASON MOORE: DIRECT BY MR. BENNETT 29 CROSS BY MR. CRANE 55 CROSS BY MR. STUBBS 63 CROSS BY MR. GARRETT 65 REDIRECT BY MR. BENNETT 67
JOSHUA EWING: DIRECT BY MR. BENNETT 69 CROSS BY MR. CRANE 86 CROSS BY MR. STUBBS 96 CROSS BY MR. GARRETT 100 REDIRECT BY MR. BENNETT 102
SCOTT WATSON: DIRECT BY MR. BENNETT 104 CROSS BY MR. CRANE 110
JUAN PALMA: DIRECT BY MR. BENNETT 112 CROSS BY MR. STUBBS 122 CROSS BY MR. CRANE 129 CROSS BY MS. PRESTON 158 REDIRECT BY MR. BENNETT 162 RECROSS BY MR. CRANE 173 FURTHER REDIRECT BY MR. BENNETT 180
LANCE PORTER: DIRECT BY MR. DISHMAN 184 CROSS BY MR. STUBBS 192 CROSS BY MR. CRANE 193 CROSS BY MR. GARRETT 196
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EXHIBITS RECEIVED IN EVIDENCE
PLAINTIFF'S EXHIBITS RECEIVED IN EVIDENCE
EXHIBIT NO. PAGE NO. 1A 31 1B 33 83 35 81 38 2A 39 15,16 47 7 49 5,6 50 17B,17C 54 2B 77 88 82 89,90 83 91 84 87A 86 23 117 22 120 24 125 26 191
DEFENDANTS' EXHIBITS RECEIVED IN EVIDENCE
EXHIBIT NO. PAGE NO.
1000 94
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P-R-O-C-E-E-D-I-N-G-S
(8:22 AM)
THE COURT: Good morning everyone. We'll call case
number 2:14-CR-470. This is our Lyman matter.
Counsel, it's the first day of trial and ordinarily we
like to come and start turning to the substance of our trial
and the merits of the case, and this morning we have some
cleanup to do first.
So I told you yesterday we discussed, counsel, some late
filed motions that I indicated were denied and explained that
we'd be providing a ruling this morning.
MR. CRANE: Your Honor, I'm sorry to interrupt.
We're just missing one counsel.
THE COURT: Well, we should have everyone here. Let
me take a moment also just outside the presence of the jury to
address any media that might be in the courtroom.
Ms. McNamee, did you already speak to the media about
where they may be?
(OFF THE RECORD DISCUSSION WITH THE COURTRO0M DEPUTY)
THE COURT: I'm going to provide a ruling on the
outstanding motions and, counsel, you can share with
Mr. Garrett.
MS. PRESTON: And he said that that was fine. Thank
you.
THE COURT: Thank you. So we had two late filed
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motions from Mr. Lyman, docket number 133, a motion to exclude
and preclude certain argument and evidence, docket 134, a
motion to exclude trial exhibits. These were filed Friday
evening at about 5:00 o'clock at the close of business.
Mr. Marian through his counsel filed an exhibit list in
this case Monday morning, the day before trial. And Mr. Wells
through his counsel filed a seven page brief yesterday morning
at 7:00 or 7:30, minutes before we met in the courtroom,
styled a trial brief concerning certain evidentiary issues.
There are motions to join filed by some of the Defendants in
some of those motions. Those motions to join are granted.
The Court's trial order specifically required that
counsel file motions in limine, if any, by April 10th, and
there were deadlines for filing objections to exhibits as well
in advance of trial. We do this in every single trial order
in every single case, both in civil cases and in criminal
cases, and there are really four reasons for this.
The reasons from my perspective managing these
proceedings are fourfold. Number one, to avoid impositions on
counsel when they are at the key period in which they're
preparing for trial. It's a courtesy to opposing counsel to
timely raise issues that are known to everyone so they can be
addressed before the time that we're all in the middle of
trial prep.
Second, it's a courtesy to the Court. We have a very
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full calendar and an awful lot of work to do. And when
objections and motions in limine are timely filed, it enables
the Court staff and me to read everything that you've
submitted and carefully think about it when we have an
opportunity in our calendar.
Third, and related to the second point, it provides the
Court with the benefit of the adversarial process so that we
have an opportunity for opposing counsel to timely respond to
issues that are raised that are important for trial. This is
very important to me because my singular objective is trying
to reach the correct, legally best rulings and results I can
with respect to legal issues. That requires that I have -- it
doesn't require -- it's aided when I have the benefit of some
advance notice, briefing from the opposing side, the
adversarial process, and a time to educate myself about the
issues so that I can make the best rulings I can for all of
you.
The fourth reason that I include those deadlines in the
trial order is as a courtesy to our jurors. We have 12
members of our community sitting in the jury room right now,
and the issues that have been raised untimely in my view in
nearly all of those pretrial submissions from the Defendants
are issues that it appears to me were well known to counsel
long before the day or day before trial, issues we could have
raised, even including the evidentiary objections if there
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were some, hearsay issues, the legality -- the issues,
Mr. Stubbs, you raised about topical issues at trial.
What I feared is that we're going to be spending time
today and tomorrow now in trial at sidebar arguing about the
evidentiary basis for exhibits, hearsay objections and
exceptions and other things, either while the jury sits in
that box waiting for us or in the jury room waiting for us.
They are providing a great service to all of us by taking time
out of their lives and their schedules, away from their
families and their jobs, and we have a duty and obligation
back to them to be respectful of their time. We do that by
timely exchanging motions in limine and objections to exhibits
so we can take them up outside the presence of the jury so
when we're here, we're just putting on our case, and they're
hearing the case, and we're moving forward.
I think the untimely filings by Mr. Lyman, Mr. Wells and
Mr. Marian implicate all four of those concerns that I have
that caused me to include deadlines in all of my trial orders,
and I think it's prejudicial to this process.
And at least with respect to all of the issues that are
raised, save possibly for the Government's exhibits that were
the subject of docket number 134, all of them could have been
raised in advance of trial in a manner that would have allowed
us to take them up, think carefully about them, discuss them
and reach good, sound decisions. It's not a good way to start
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trial.
Let me take up the motions now in turn, first turning to
Mr. Lyman's motions. They're untimely, as I said, and they're
also not well taken. Docket 134 is a motion to exclude or
preclude certain categories of evidence and certain phrases.
It's poorly conceived in my view. It raises issues long known
to counsel. There's no explanation in the brief why it's
filed at 5:00 o'clock the night before the weekend before
trial, which resulted in this case, of course, and the United
States doing the very thing that I seek to avoid. And it's
not an issue about the United States or the Defendants or
criminal cases or civil cases.
The Saturday before trial the United States spent the day
preparing briefs and filing responses to your motion because
you waited until Friday night to file it. It's unfair. And
of course my staff and I read them on Sunday, which is fine.
The motion is denied for that reason as untimely. It's
also, as I said, not well taken. We'll return to the
substance of that motion in just a moment.
Docket 134 is Mr. Lyman's motion to exclude certain
exhibits from the Government, which in my view was at best
haphazard and incomplete and at worst misleading about what
was disclosed by the United States and when and how. It was
selective in presenting a partial picture of the facts in a
way that I think was misleading to me at least until I
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received the opposition from the Government Saturday night.
Those exhibits that were produced by the United States,
if the United States is correct, and of course I don't have a
reply brief from you, Mr. Stubbs, telling me if there was
anything incorrect in their opposition, tells me that
everything that was in that late disclosure was already
disclosed, and that these were only copies of exhibits that
were narrowed from exhibits previously produced to the
Defendants or in some instances redacted, and at least in some
instances at the request of the Defendants at the final
pretrial conference. If this were a civil case, I'll tell you
I would consider awarding attorney's fees as a sanction for
filing that motion just days before trial.
That motion is also denied as untimely, and it's denied
as being without merit in view of the Government's response
over the weekend.
I do want to address two issues raised in docket 133, the
motion to exclude and preclude. We spoke briefly yesterday in
the jury room about evidence and testimony relating to
firearms on the ride. My view is there are 401 and 403
issues. It's conceivable that there's some potential
relevance given the theory of the Gate case that the United
States might try to articulate in this case, but I think that
any potential relevance is outweighed by the potential
prejudice to the Defendants. There's a Second Amendment right
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to have their firearms, and unless there's some direct
evidence that ties exhibiting firearms, carrying firearms on
the ride as part of the conspiracy for some purpose, to
advance the objective of conspiracy, then I don't think it has
any place in this case. It's not relevant to count two for
sure.
Insofar as any of the exhibits that the United States
intends to introduce, display photos or video of the
Defendants or anyone else on the ride with firearms, that's
fine. The Defendants chose to wear them, if they did, in
public, then that's fine. We just won't elicit testimony from
witnesses about it and we won't argue about the relevance of
that to the conspiracy in the case.
Do you wish to make a record about that, Mr. Bennett?
MR. BENNETT: May I please, Your Honor?
THE COURT: Would you.
MR. BENNETT: Thank you. The main reason for
discussing at least briefly with one of our first witnesses
about the gun is really to take on the defense that Mr. Wells
has raised that he's a neutral reporter. I think it would be
very probative for the jury to be able to look at that and
consider whether a reporter goes out on a legal ride dressed
in cammo carrying a gun.
THE COURT: Well --
MR. BENNETT: It seems -- sorry, I didn't mean to
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talk over you.
THE COURT: Go ahead. Make your record.
MR. BENNETT: No. Just that it seems -- we just
want the jury to see that it's incongruent for a reporter to
be dressed in that fashion and just to negate the defense.
THE COURT: Any more so because he happens to be
carrying a sidearm than if he's not? I mean if he's holding
himself out as a reporter and reporting on the proceedings
only, don't you have the benefit of putting on evidence that
in fact you're not. You're there participating in an unlawful
ride and wearing camouflage. But the gun doesn't add anything
to that discussion, does it, enough to overcome 403 issues is
my question?
MR. BENNETT: Well, I believe it does. I mean if we
look at the United States versus Naranjo case out of the Tenth
Circuit, it quotes the Fifth Circuit in McRae. And it says
that 403's function isn't to exclude evidence to make it close
if there is -- or to do anything to equalize the evidence.
The United States has presented evidence, it seems -- it's not
just to present the modicum of evidence necessary to prove the
information. They've chosen to plead not guilty. Mr. Wells
has chosen --
The COURT: Which they have a right to do.
MR. BENNETT: Absolutely. And he's even -- he's
chosen to raise the defense, which of course he has the right
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to do. He has a second amendment right to wear the gun,
absolutely. But at the same time, the jury should be able to
use their common sense notion as to whether reporters show up
to an illegal ride wearing camouflage and a gun.
THE COURT: Good enough, thank you. I respectfully
disagree. So we won't have any examination about witnesses or
elicit any testimony about the firearms, unless Mr. Wells or
his counsel or one of the other Defendants put it directly at
issue.
All right. There's a second issue raised, and I'll tell
you, Mr. Stubbs, it's unclear to me, in fact it seems
contradictory to me the way that you argue this in your
motion, the issue about excluding argument and testimony about
this being an illegal ride. Insofar as what you mean by being
an illegal ride, that the closure was legal is a legal issue.
I agree, it is purely a legal issue and it's been decided by
the Court. You raised it, we discussed it in the final
pretrial conference, and I made a ruling. It is a legal
closure. This road is closed by the BLM legally and lawfully
for purposes of this trial. The Tenth Circuit may disagree
with me, and you can take it up with them if you wish. That
is not an issue for trial. It's closed.
If you meant that the illegality of the ride in terms of
whether it was criminal was the issue, then I agree with you
completely. That is the entire purpose of the trial. But
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this is where the adversarial process is helpful to us. You
think it was not criminal, the United States thinks it was and
they've charged it as a crime. This is no surprise to anyone
in the court, in fact we read the allegations or summary of
them to the jury yesterday.
The United States can maintain its position that it's
criminal, you can maintain that it's not, and both sides can
argue from the evidence and the Court's instructions about
what the jury should find. But I wanted to be clear about
that issue.
What we are not discussing in this trial, what we are not
arguing in this trial, what we're not inviting the jury to
consider in this trial is whether that was a lawful closure.
It is and it was. That issue is decided for trial. It's also
a legal issue, as you pointed out, and would have no place
being considered by the jury in any event.
Mr. Garrett, the status of your exhibit list that was
filed the day before trial, did you discuss it with the United
States when they should have been preparing for their trial?
I don't mean to be sharp about this, but I'm really frustrated
by the timing of the filings by the Defendants in this case.
It was I think potentially prejudice to the United States when
they're trying to prepare their case. What did you learn?
MR. GARRETT: Your Honor, their map is similar to my
map. I like the colors on my map better, and that's the only
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difference between the two. Theirs is actually bigger and
nicer, so I would use theirs. So that's what we've learned.
I just -- it seemed to me that for purposes of
cross-examination of one of the witnesses it would help me to
have my map. The United States' map the witness can testify
to exactly the same.
THE COURT: Provided there's foundation for the
map.
MR. GARRETT: Provided there's foundation.
THE COURT: I think you can use it in
cross-examination. You can't offer it as an exhibit if it was
not timely disclosed and I won't receive it. But
cross-examination I think is fair game, provided it's an
accurate depiction of the area.
MR. GARRETT: It would be -- it's produced, Your
Honor, by the BLM itself.
THE COURT: All right. Mr. Crane, I've now had the
chance to read the brief that you filed yesterday. What is
it? It's not a trial brief. It's styled as a trial brief.
It doesn't present the theories of the case or -- it basically
in my view is -- provides a preview of information or evidence
you'd like to strike. In that sense it's like a motion in
limine. Of course you're not required to file motions in
limine. You included seven pages of case law. We read most
of it late last night and early this morning. You don't
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direct it at specific exhibits, though there is discussion of
categories of exhibits.
Insofar as it was intended to just preserve some issue
for the record, it's untimely. If it was designed to aid the
Court and educate me about evidentiary issues you foresaw in
the case, of course it would have been helpful to have it
before 7:30 the morning that we start the trial. In any
event, it's been received. I don't know whether the United
States intends to respond.
If there are issues in that brief that we need to take up
while this jury is waiting, I'm especially displeased that we
waited until -- all of those issues must have been known weeks
ago when we received the Government's exhibits, but I'm going
to stop carrying on. We've caused the jury now on the very
first morning of its jury service to wait 10 or 15 minutes for
us to take up issues we should have discussed last week at the
final pretrial conference.
Is there any -- go ahead and make a record, any of the
Defendants who need the benefit of a record now.
MR. CRANE: I just want to say that the Government
in this case produced over a hundred -- excuse me -- and five
exhibits with multiple --
(MICROPHONE FEEDBACK)
MR. CRANE: I apologize.
THE COURT: That's all right.
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MR. CRANE: The Government in this case produced
over 105 trial exhibits with multiple subparts. Through last
week on several different days they were producing subparts A,
B, C and D, which were redactions, so we're constantly going
through the exhibits and trying to figure out where the
Government was. We had talked to the Government about
concerns we had with some of the material in the exhibits.
That's why they produced redacted versions. We were still
going through those.
In addition, it's just me trying this case. Our
resources are significantly limited, and it just takes time to
go through all this stuff. There was no intent to try to
prejudice the Government by the filing and the timing that we
did. It's just we're doing the best we can and putting
together when we can. And so as -- as we thought that
these -- these issues might raise at trial, we thought the law
might be helpful to the Court.
THE COURT: All right, thank you. Is there anything
more before we call the jury?
MR. CRANE: Yesterday it was mentioned potential for
maybe limiting instructions. I did draft one just last night.
I provided it to counsel and I'm happy to give the Court a
copy. It may or may not come up in trial, just trying to be
prepared for that.
THE COURT: All right, thank you. Let me just ask
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counsel for the Defendants if you know whether you intend to
provide an opening or not. If you already know that you
intend to, I'll notify the jury. If you want to wait until
you hear from the United States to make your election, that's
fine too.
Mr. Stubbs?
MR. STUBBS: I intend for Mr. Lyman to make an
opening statement. I don't believe the other Defendants
intend to make an opening statement at this time.
MR. CRANE: We will reserve, Your Honor, until the
start of our case in chief. We'd also invoke Rule 615, the
Exclusionary Rule.
THE COURT: Right, okay. Has the United States
attempted to identify your witnesses and ensure that they're
all outside the courtroom save for the case agent?
MR. BENNETT: Yes, Your Honor.
THE COURT: All right. Shall we bring the jury? By
all means let's do.
Ms. McNamee.
THE CLERK: All rise for the jury, please.
THE COURT: Good morning, members of the jury.
Thank you for being here. We're sorry to keep you for a few
moments. We had just a few pretrial matters to take up and
resolve. We will try to be respectful of your time while
we're here.
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Is the United States ready to proceed?
MR. BENNETT: Yes, Your Honor.
THE COURT: Are the Defendants ready to proceed?
MS. PRESTON: Yes, Your Honor.
MR. CRANE: Yes, Your Honor.
MR. STUBBS: Yes, Your Honor.
MR. GARRETT: Yes, Your Honor.
THE COURT: Mr. Bennett? Mr. Dishman.
PLAINTIFF'S OPENING STATEMENT
MR. DISHMAN: Thank you, Your Honor.
On May 10th, 2014 each of these four defendants crossed
the line. After listening to the testimony from the witnesses
and reviewing all the evidence, you will know that each of
these four defendants knowingly and willfully drove an ATV
through an area they knew was closed to off-road vehicles.
The evidence will also show that each of these four
Defendants did this because they were protesting. This was an
act of defiance against the BLM, because the Defendants wished
to express their frustration, their disagreement, with the
Bureau of Land Management.
The evidence will also show that each of these four
Defendants could not have made a mistake, that there was no
way for confusion or error, but that they chose to cross the
line.
There's one other thing that the evidence will show, and
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that is that each of these four Defendants were the members of
a conspiracy, that they conspired or agreed with each other to
break the law.
Now, you will not learn that this was a complex
conspiracy. You will not learn that this was a conspiracy
shrouded in secrecy. What you will learn is that this was a
simple conspiracy, an open conspiracy, where the Defendants
were actively inviting others to join in their protest, to
join in their agreement to break the law.
Now, there is this line that the Defendants crossed. It
surrounds a small Canyon in southeastern Utah. And if a
person wished to go visit this canyon, they would take I-15
south, turn left at Spanish Fork Canyon and drop down past
Price and Helper and continue down to I-70. They would then
turn left and go east on I-70 and drop down on Route 191 past
Arches National Park, past Moab, through Monticello until
arriving at the town of Blanding, Utah in San Juan County.
Just to the east of Blanding, Utah lies this canyon.
It's called Recapture. It's this little green squiggly thing
there highlighted. Recapture Canyon is not a big canyon.
Maybe it's a couple hundred feet deep at its deepest point.
It might be half a mile wide across at its broadest point.
There's a small stream that meanders on through it.
It's quite a charming canyon. But setting aside its
natural beauty, there's something else that makes this canyon
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special. Lining the canyon walls are ancient cliff dwellings
made hundreds of years ago. In certain places the canyon
floor is littered with artifacts left from the ancient people
that lived there.
And through the evidence you will learn that it was in
2007 the BLM, using the authority granted to it by Congress,
closed this canyon to off-road or motorized vehicles, and they
did so to protect those artifacts, those cultural resources.
This is a copy of that closure order. And when they
closed it, you will learn in evidence that the BLM in order to
notify, among other things, other ways they did this, to
notify the public of the closure, posted these signs around
the canyon notifying anybody, warning them, that this area in
red hatch was closed to off-road vehicles.
The evidence will also show that this is the only
restriction BLM placed on it. That a person can hike through
this canyon, a person can mountain bike through this canyon, a
person can horseback ride through this canyon. It's open to
the public in all those forms. The only restriction the BLM
placed in 2007 was it limited it to motorized vehicles.
During the Government's case you will hear from six
witnesses. The first witness will be Jason Moore. Jason
Moore is a Ranger with BLM, and he will testify that he on May
9th, the day before the protest, hiked down into this canyon,
and among other things he did you will learn that he checked
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each one of these signs to make sure they were up, visible,
clearly posted and marking the closure area.
As a matter of fact, you will learn that this is the --
during the testimony, this is the actual sign each one of
those four Defendants sitting over there crossed when they
drove their ATV into the closed area.
You will also learn that on May 10th, early in the
morning, Ranger Moore hiked down into the canyon and he took
with him a camera. He hiked about a half a mile to a mile in
the enclosed area along the proposed route that the protestors
were going to take, and he waited. And when the protestors
started coming down, he took pictures.
He took this picture here. I direct your attention to
the screens down in front of you. He took this picture of the
Defendant, Mr. Lyman, seated right there, driving his ATV in
the closed area. You'll learn he took this next picture of
Mr. Wells, seated at the end in the front, driving his ATV in
the enclosed area.
I'm sorry, Your Honor, there seems to be a problem with a
juror's monitor.
THE COURT: Are your monitors not on?
A JUROR: Just this one. Can't get it.
MR. DISHMAN: Are you able to see it over there,
just the big TV? We'll wait for a juror to get her glasses.
THE COURT: My apologies, Mr. Dishman. It sometimes
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happens with our new technology.
Members of the jury, while we're doing this, let me just
take a moment to say that you're the most important folks in
this courtroom. If there's any piece of evidence or testimony
that you can't hear or see, let me know. We want to make sure
you have a chance to view everything and hear everything that
you need to make your decisions.
(OFF THE RECORD DISCUSSION BETWEEN THE COURT AND THE CLERK)
THE COURT: Mr. Dishman, one of the jurors asked if
we couldn't display the first exhibit again. In the meantime,
what if we -- counsel, do you have the exhibits on your
screens at table? You want to just wheel the screen over in
front of the jury for the time being.
MR. CRANE: You'll have to unplug it. The cord
doesn't stretch. There's another plug up here.
THE COURT: Are enough of the screens on that the
jurors can see?
A JUROR: Yeah.
THE COURT: All right. My apologies on behalf of
the Court.
Go ahead, Mr. Dishman.
MR. DISHMAN: No problem. So visiting back to that
first photo, Ranger Moore will testify he took this photo of
Mr. Lyman driving his ATV in the enclosed area.
If we could see the next photo, please.
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He also saw this photo. He took this one. And he'll
testify that this is Monte Wells, the Defendant seated at the
end on the front row. He also took this next photo of two
individuals driving their ATVs.
Ranger Moore will testify he did not know at the time who
these individuals were, but he'll testify that because of this
and other photos of individuals riding the ATVs, he sought
help from other local law enforcement officers and showed them
the photos asking if they recognized any of these individuals.
The second witness you'll hear from is Josh Ewing.
Mr. Ewing is a resident of San Juan County, and he'll testify
that he too was in the canyon that day, May 10th, during the
protest inside the closure area, and he was filming and
documenting the protest. Mr. Ewing will testify, and you will
see video that he took, again of each of the four Defendants
driving their ATV in the enclosed area.
The third witness you will hear from is Scott Watson. He
is a ranger with the forest service. And Ranger Watson will
testify that Ranger Moore, the first witness, came to him with
these photographs of individuals he could not identify. And
Ranger Watson will testify, based on his personal knowledge of
Mr. Marian and Mr. Holliday, that the two individuals you saw
driving in that third photograph are in fact the two
Defendants, Mr. Holliday and Mr. Marian, seated in the second
row of tables.
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Fourth witness will be Juan Palma. Mr. Palma at the time
was the State Director of BLM. He's since retired. Mr. Palma
will testify about his interactions with both Mr. Lyman and
Mr. Wells in the two months leading up to the ride.
Among other things you'll hear from Mr. Palma is that he
received an e-mail from the Defendant Mr. Lyman on March 2nd
notifying him of his intent to ride Recapture Canyon in a
protest. Please pay close attention to this e-mail because
Mr. Lyman writes in this e-mail that he hoped and prayed that
the BLM would take some action which would turn their illegal
ride into a legal one.
The fifth witness you'll hear from is Lance Porter.
Mr. Porter was the State -- or excuse me -- he was the
District Manager of BLM at the time, and his responsibility
was managing the lands in southeastern Utah, including San
Juan County and Recapture Canyon.
Among other things that Mr. Porter will testify to is
that on April 27th, about two weeks before the protest ride,
he was at a meeting with Mr. Lyman, and there -- excuse me --
April 28th. He handed a letter personally to Mr. Lyman, and
that letter warned Mr. Lyman of the possible criminal and
civil consequences that any person that violated the travel
order, this travel restriction on BLM land, would face if they
decided to do it.
The sixth witness is Scott Watson. He is a Special Agent
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with the BLM, and he'll testify that after the protest
occurred he was tasked with conducting what is called an open
source internet investigation. And in his testimony you'll
learn that an open source internet investigation is simply
accessing things on the internet that are available to
everyone. You'll learn it's not behind a password where you
need an invite. It's what any person could access on the
internet.
And through him you'll learn a lot about the conspiracy.
You'll learn that the conspiracy started on February 27th at a
town hall meeting hosted by the Defendant, Mr. Lyman. You'll
learn that they used social media, Facebook and blog postings,
to inform the other members of the conspiracy about changing
the date of the protest, and important locations and times of
protest events. You will learn that Mr. Holliday and
Mr. Lyman were following each other on Facebook, that they
were liking each other's posts.
At the end of the case, after you've been able to hear
from all of the evidence, both the United States' and any that
the defense may provide, the United States will return right
here and ask you to return a guilty verdict. They'll ask
you -- the United States will ask you to find the Defendants
guilty of conspiring to break the law and find guilty of
operating an ATV in an area they knowingly and willfully knew
was closed to ATV use. The United States will return and ask
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you to find the Defendants guilty of crossing the line.
The Court: Thank you, Mr. Dishman.
Members of the jury, I informed you yesterday in your
preliminary instructions that the Defendants have no
obligation to put on any evidence or make any argument at all.
They also have the option that I didn't discuss with you to
reserve making an opening statement until after the close of
the Government's case, and each of the Defendants can make
that decision individually for themselves.
Mr. Stubbs, I believe Mr. Lyman would like to open at
this point, is that right?
MR. STUBBS: Yes, Your Honor. And I just need to
get the microphone from Mr. Dishman.
THE COURT: Of course. You have the floor.
DEFENDANT LYMAN'S OPENING STATEMENT
MR. STUBBS: My name is Jared Stubbs. Can you guys
hear me? My name is Jared Stubbs and I'm counsel for Phil
Lyman.
In 2007 -- excuse me. In the fall of 2007 the BLM issued
a temporary closure for what is known as Recapture Canyon.
Recapture Canyon is a 37 mile long Canyon near the city of
Blanding in San Juan County. The BLM issued a temporary
closure order for seven miles of that canyon.
Now, the local residents near Recapture Canyon were
frustrated. This canyon is a canyon they loved and they'd
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been visiting their entire lives, and the BLM closed a seven
mile portion. However, despite their frustrations, they
agreed to work with the BLM to do what was necessary in order
to reopen Recapture Canyon. However, year after year the BLM
would not lift the temporary closure.
Finally, seven years later, Phil Lyman, Commissioner for
San Juan County, decided to lead a lawful political protest
against the BLM's delays and inactions. In May, on May 10th
in 2014, Phil Lyman, citizens of Blanding and citizens of San
Juan County gathered together in a public park to hold a
rally. At this rally Phil and others expressed their
annoyance with the BLM's actions and inactions. After the
rally, Phil Lyman, people in Blanding, families, neighbors,
families with children, got on their ATVs and they road into
Recapture Canyon.
Now, Phil and the others believed that they had a right
to be in that canyon, and evidence will be shown to you that
Phil and the other protestors did not violate the law. Thank
you.
THE COURT: Thank you, Mr. Stubbs.
Counsel, I understand the rest of you would like to
reserve opening?
MR. CRANE: Yes, Your Honor, we reserve.
MS. PRESTON: That's correct, Your Honor. Thank
you.
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MR. GARRETT: Yes, Your Honor.
THE COURT: Very good, thank you.
Mr. Bennett, does the United States have a witness?
MR. BENNETT: Yes, sir. United States calls Jason
Moore to the stand.
(BRIEF PAUSE IN THE PROCEEDINGS)
THE COURT: Let me explain the delay. Members of
the jury, we often invoke what's called the Exclusionary Rule
at a trial so that the witnesses that testify in the case
remain outside of the courtroom so that their testimony is not
affected by the testimony of other witnesses. This means we
need to go retrieve them sometimes, and we may have a short
break in between sometimes. If you wish while we're waiting,
you're welcome to stand up and stretch your legs, except not
right now.
Mr. Moore, good morning. Come forward, if you would,
please, and let's have you sworn.
Right here will be fine, thank you.
The Clerk: Please raise your right hand.
(JASON MOORE, PLAINTIFF'S WITNESS, SWORN)
Thank you. Please be seated. Please state and spell
your name for the record.
THE WITNESS: Jason David Moore, J-A-S-O-N,
D-A-V-I-D, M-O-O-R-E.
* * *
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DIRECT EXAMINATION
BY MR. BENNETT:
Q Mr. Moore, what is your occupation?
A I'm the State Chief Ranger for the Bureau of Land
Management in Utah.
Q And for how long have you been doing that?
A Been doing that job since December of 2014.
Q What type of training did you receive in order to do that
job?
A In order to do that job I attended the Federal Law
Enforcement Training Center Academy in Glenco, Georgia in
2001 --2002. That was a 14 week course which dealt with basic
police tactics and real basic police academy. I had criminal
law, constitutional law, a lot of physical training, arrest
techniques, had some Archaeological Resource Protection Act
training while there. Just a real basic academy is what it
was.
Q Prior to attending the BLM academy, what was your
occupation before being a BLM agent?
A Prior to that I worked for United States Border Patrol in
Texas.
Q And for how long did you work for the Border Patrol?
A Approximately three and a half years.
Q And prior to that what was your educational background?
A I have a Bachelor's of Science in Criminal Justice from
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Southern Utah University.
Q Now, is the -- you mentioned earlier you're the Chief
of -- Chief Ranger for the Bureau of Land Management?
A Correct, in Utah, correct.
Q What exactly do you do as a Chief Ranger?
A As the State Chief Ranger I'm the top ranking uniform law
enforcement official in the State of Utah for the BLM. I
provide broad program oversight of the law enforcement
program. I provide training for the rangers, make sure
they're trained up in firearms, control tactics, legal
updates, stuff like that.
I also deal with disciplinary issues for the Rangers in
the state. I interface with all of the county Sheriffs in
group settings and one-on-one. I go meet with them. I'm the
program expert for the State Director, Associate State
Director and the District Manager and Field Office Managers.
Q I'd now like to direct your attention to a place called
Recapture Canyon. Are you familiar with that place?
A Yes, I am.
Q Now, where is it located?
A Recapture Canyon is located east of the town of Blanding,
Utah, just off of Highway 191 at the bottom of Recapture
Reservoir.
Q Now, I'm showing you what has been marked as Government
Exhibit 1A. Do you recognize this?
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A I do.
Q What is it?
A That is a map of the State of Utah with a general
location of Recapture Canyon down in the southeast corner.
Q Would it assist you in providing testimony here today?
A It will.
MR. BENNETT: Your Honor, may I please admit this
into evidence as Exhibit 1A for illustrative purposes only?
The Court: For illustrative purposes it will be
received.
(PLAINTIFF'S EXHIBIT 1A RECEIVED)
MR. BENNETT: May I publish it to the jury?
THE COURT: You may.
MR. BENNETT: Thank you, sir.
Q (BY MR. BENNETT) Chief Moore, would you mind coming down
and just illustrating how we would get from the courthouse
down to Recapture Canyon on this map.
THE WITNESS: Sure.
THE COURT: And while you do that, any counsel for
the Defendants, if you're unable to see the map, reposition
yourself wherever you'd like so that you can see the testimony
as it unfolds.
Go ahead, Mr. Moore.
THE WITNESS: So we are here, Salt Lake City and
everybody (inaudible).
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The Court: All right. So one other thing,
Mr. Moore. Our court reporter also needs to be able to hear
you, so will you please just keep your voice up while you're
facing the other direction.
THE WITNESS: Yes, sorry, I will.
THE COURT: Thank you.
THE WITNESS: All right. So start in Salt Lake
City, and you travel down to Price, get to Moab, take 191 down
through Moab, all the way through Monticello and down to
Blanding. Right before you get to Blanding, Recapture
Reservoir, Recapture Canyon is right at Recapture Reservoir
right before the town of Blanding.
Q (BY MR. BENNETT) Also showing you what has been marked as
Government Exhibit 1B, do you recognize that?
A I do, yes.
Q What is it?
A That is a close-up of the southeast corner of the state
showing in more detail the location of Recapture Canyon.
Q And would Exhibit 1B assist you in providing testimony
today?
A It would, yes.
Q Is this a reasonably accurate representation of the
location of Recapture Canyon?
A Yes, it is.
MR. BENNETT: Your Honor, I move Exhibit 1B into
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evidence for illustrative purposes.
MR. CRANE: No objection.
THE COURT: Without objection it's received.
(PLAINTIFF'S EXHIBIT 1B RECEIVED)
MR. BENNETT: May I publish it to the jury?
THE COURT: You may.
Q (BY MR. BENNETT) Chief Moore, would you mind coming down
and illustrating the -- where Recapture Canyon is in relation
to Blanding, Utah?
A Yes. Blanding is right there, and Recapture Canyon is
just a couple miles to the east of the town of Blanding, Utah
in the green right there.
Q Thank you. Please take your place back on the stand.
Chief Moore, which federal agency manages Recapture Canyon?
A The Bureau of Land Management.
Q Are you aware of whether BLM has any restrictions on
Recapture Canyon?
A I am, yes.
Q What are those restrictions?
A You cannot operate an OHV within Recapture Canyon.
Q Now, you used the term OHV. What does that mean?
A It's an off-highway vehicle.
Q Is any vehicular use possible in Recapture Canyon
according to BLM?
A There are certain right-of-ways that can be granted for
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vehicular use within Recapture Canyon, yes.
Q What is the right-of-way that's granted by BLM?
A A right-of-way being granted for maintenance purposes.
If, for example, you had a reason to go down to maintain
something, BLM could grant you a right-of-way to maintain
whatever it is you're going to maintain.
Q Without BLM permission, can anyone just drive a vehicle
through Recapture Canyon?
A No.
Q So it requires special permission from the Bureau of Land
Management?
A Yes, it does.
Q I am now showing you what has been marked as Government
Exhibit 83. That should pull up on your screen. Do you
recognize that document?
A I do.
Q What is it?
A That is a copy of the Recapture Canyon area travel
restrictions which was the closure order which closed
Recapture Canyon to recreational off-highway vehicle use.
Q And is it a true and accurate representation of the
closure order?
A Yes, it is.
MR. BENNETT: Your Honor, I move Exhibit 83 into
evidence.
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MR. STUBBS: No objection.
MS. PRESTON: No objection.
MR. GARRETT: No objection, Your Honor.
THE COURT: It will be received.
(PLAINTIFF'S EXHIBIT 83 RECEIVED)
Members of the jury, let me just explain just for a
moment what just happened. Ordinarily we provide
foundation -- hi. Big board. We provide foundation for an
exhibit with the witness before the exhibit is shown to the
jury. So your screens will sometimes be blank as the witness
and the lawyer are talking about the evidence the witness is
looking at. And once it's received by the Court, it should
pop up on your screen. So if I admit or receive an exhibit
into evidence and then it doesn't come up on your screen,
that's when you need to let us know. Thank you.
Go ahead, Mr. Bennett.
MR. BENNETT: Okay. Has that been published?
THE COURT: Well, it has now.
MR. BENNETT: Okay.
THE COURT: Received and published.
Q (BY MR. BENNETT) Just drawing your attention to the first
page of Exhibit 83, do you see in the second -- excuse me --
the first paragraph it mentions that OHV use was causing and
threatening to cause considerable adverse effects to resources
including cultural resources. Do you see that?
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A Yes.
Q What are some of the cultural resources that are there in
Recapture Canyon that you've seen?
A Throughout Recapture Canyon I've seen a multitude of
archaeological and cultural sights, to include cliff
dwellings, literally thousands of pieces of pot shards. There
are fire hearths, midden piles, which is basically like a big
black area of middens, kind of like fire ash basically. There
are burial cists, storage cists, stuff like that, rock walls
that are still -- still standing.
Q How many times have you been in Recapture Canyon, Chief
Moore?
A I would say approximately six times.
Q Have you ever hiked it before?
A Yes, I have.
Q How many times?
A All the way through or just pieces of it?
Q Just pieces.
A Probably six times.
Q How about the closure area?
A The closure area, same, six times. I've always been in
the closure area.
Q Do you know if BLM did anything to publish the closure
order to the public?
A I do.
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Q What did they do?
A They published the closure order in the Federal Register.
They will also publish it at the field office. They publish
it in newspapers. That's how they make the public aware of a
closure order.
Q And what is the Federal Register?
A The Federal Register is a document where you publish for
public comment and notification closure orders, supplemental
rules, stuff like that.
Q Showing you what has been marked as Government Exhibit
81, do you recognize that document?
A Yes, I do.
Q What is it?
A That is the Federal Register notice.
Q Is it an accurate representation of the Federal Register
notice, and specifically what Federal Register notice?
A That is the Federal Register notice for the closure of
Recapture Canyon to recreational off-highway vehicle use.
Q What day was it published?
A It was published September of 2007.
Q And the Federal Register notice itself, which day was
that published?
A That was published on October 5th of 2007.
Q Is this a true and accurate copy of the Federal Register
notice of the Recapture Canyon closure?
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A Yes, it is.
MR. BENNETT: Your Honor, I'd move Exhibit 81 into
evidence.
MR. STUBBS: No objection.
MR. CRANE: No objection.
MS. PRESTON: No objection.
MR. GARRETT: No objection.
THE COURT: It's received.
(PLAINTIFF'S EXHIBIT 81 RECEIVED)
MR. BENNETT: May we publish it to the jury?
THE COURT: You may.
Q (BY MR. BENNETT) I'd also like to draw your attention to
Government Exhibit 2A. Do you recognize this exhibit?
A Yes, I do.
Q What is it?
A That is the closure sign from Recapture Canyon.
Q When you say the closure sign, what do you mean by
that?
A That is the actual sign that came out of the ground in
Recapture Canyon at the beginning of the closure area.
Q What's standing there now?
A A replica of -- another sign just like that but new.
MR. BENNETT: Your Honor, I move Exhibit 2A into
evidence.
MR. STUBBS: No objection.
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MR. CRANE: None.
MS. PRESTON: No objection.
MR. GARRETT: No objection, Your Honor.
THE COURT: It's received.
(PLAINTIFF'S EXHIBIT 2A RECEIVED)
MR. BENNETT: May we publish it to the jury?
THE COURT: You may.
Q (BY MR. BENNETT) Chief Moore, when was that sign posted by
BLM at the closure area?
A That sign was posted 2007, as soon as the canyon was
closed.
Q I'd like to direct your attention to, at least from my
perspective, the right side of that sign. Do you see that?
A Sort of.
Q If you need to get down and look at it, that would be
fine.
Is that okay, Your Honor?
THE COURT: Of course, please.
Q (BY MR. BENNETT) So looking at the right-hand side of that
sign, what do you see there on Exhibit 2A?
A The right-hand side of the sign is the copy of the
closure order.
Q And is that the copy we just saw in Exhibit 83?
A Yes, it is.
Q I'd like to direct your attention to the left side of
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Exhibit 2A. What is that?
A That is a map of the closure area in Recapture Canyon.
Q Now, looking at the map, would that be helpful to you
today to illustrate the rest of your testimony?
A Yes, it would, absolutely.
Q We'll come back to that in just a moment. Now, could you
describe for the jury what comes after the closure sign in
Recapture Canyon?
A After the closure sign there is a two-track road which
goes for approximately one mile to a turnaround or kind of
just a big clearing, and then the road ends.
Q What's a two-track road?
A Two-track road is basically -- we call it -- all the time
we call it a two-track road. It's got a track here, track
here, barely wide enough for one vehicle. This particular one
has trees, you know, pinion, juniper trees on each side. You
don't necessarily need a four-wheel drive vehicle to get down
a two-track road, but a high clearance vehicle does help. You
can have, you know, brush in the middle, large rocks in the
middle, stuff like that.
Q Why is that two-track road there?
A That two-track road is there for the San Juan Water
Conservancy District to access their pipeline.
Q Do they have special permission from the BLM to access
that pipeline?
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A They do.
Q And that pipeline is in the closed area?
A Yes, it is.
Q Now, what comes after the -- you mentioned the clearing
at the end of the road. What comes after that in Recapture
Canyon?
A After that the road stops. There's a clearing where, you
know, kind of a turnaround, and then it narrows down to what I
would call a foot path or small trail that varies from, you
know, 18 inches wide down through the bottom, through the
creek, and it's overgrown with brush in some spots. And then
there's other spots where it kind of gets up on the hill where
it's a little bit wider, four or five feet wide, but for the
most part it's a foot path down through there.
Q I'd like to ask you -- would you please mark on the map
on Exhibit 2A where the closure sign is approximately.
A So the closure sign is right there.
MR. BENNETT: The witness has placed a piece of blue
tape where the closure sign is.
Q (BY MR. BENNETT) Would you please mark that as sign or --
if you can. Have you marked it?
A Yes, sign.
Q Now, could you please show where the clearing area or the
turnaround area I think you referenced earlier is on that map
approximately. Will you please mark T.O. on there.
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A T.O.
Q Have you done that?
A Yes.
Q Okay. Please return to your seat. Thank you. Now, I'd
like to ask you a little bit about the case we're here about
today. How did you become -- did you become involved in this
case we're here about today?
A Yes, I did.
Q How did you become involved in it?
A In late February 2014 I was notified by a fellow law
enforcement officer of a ride that was planned down in
Recapture Canyon in May of 2014.
Q What did you do when you received that information?
A When I received that information I notified my other law
enforcement officers working in the area, and I also notified
the Field Office Manager from Monticello Field Office, and the
Canyon Country District Manager in Moab, which the Monticello
Field Office is part of that district.
Q What did you do with that information after you notified
them?
A After I notified them, we began interacting with other
law enforcement entities in the state to try to figure out a
way to deal with the ride if it actually did happen.
Q I'd like to take you up to May 9th of 2014. Do you
recall that date?
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A Yes, I do.
Q Did you take any action on May 9th, 2014 regarding this
case?
A Yes, I did.
Q Can you tell us what you did?
A On May 9th of 2014 myself and three other BLM officers
went into Recapture Canyon to set up trail cameras at various
locations through the canyon.
Q What's a trail camera?
A Trail camera is something -- hunters use them a lot.
It's about this big. It's a pretty small box, and it contains
a camera, and it is motion activated, and when something goes
by, moves by it, it can take a series of one to three
pictures.
Q How many trail cameras did you place in Recapture
Canyon?
A We set up a total of four cameras.
Q Was that within the closed area?
A Yes, it was.
Q Would you please mark for the jury where those --
approximately where those trail cameras were placed on May
9th, 2014. Would you just please mark that with a one.
A Yeah.
Q And that's on Exhibit 2A, is that correct?
A Correct.
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Q Now, please mark the remaining trail cameras. Now, would
you -- for the first camera, where is number one located
approximately?
A Number one was located about a quarter of a mile before
the clearing, turnaround, the right-of-way, and just below
where I was in the canyon.
Q Approximately how far from the closure sign was trail
camera one?
A Approximately one mile.
Q I notice that a little bit further down on Exhibit 2A you
put a second piece of tape. What did you mark that second
piece of tape?
A Two and three. You're talking this piece of tape --
Q Correct. It would be the to fourth piece of tape on
the --
A Two and three.
Q Where approximately was cameras two and three
installed?
A They were in a place called Browns Canyon.
Q I notice the very bottom of Exhibit 2A you have another
piece of tape.
A Yes, I do.
Q What is that?
A That is the end of the closure area near Perkins Road.
Q And that was the fourth trail camera?
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A Yes, it was.
Q All right. Please take your seat. In addition to
installing trail cameras on May 9th, 2014, did you do anything
else?
A No, we did not.
Q Did you check the signs?
A Yes, we did.
Q And can you tell me the status of the -- of this closure
sign, Exhibit 2A, on May 9th, 2014?
A This sign was still in the ground on May 9th, 2014.
Q Was it in its place?
A Yes, it was.
Q Now I'd like to turn your attention to May 10th, 2014.
Do you recall that date?
A Yes, I do.
Q Where were you in the morning of May 10th of 2014?
A The morning of May 10th, 2014 we were inside the closure
of Recapture Canyon.
Q And what were you doing there?
A We were down there to take photographs.
Q Of what?
A Of possible riders within the closure as they came down
the canyon.
Q Would you please mark for us on Exhibit 2A approximately
where you were on the morning of May 14th -- excuse me -- May
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10th, 2014.
A Right about there.
Q Would you please put your initials there.
A Yes.
Q Approximately how far into the closure area away from the
closure sign were you stationed on May 10th, 2014?
A Approximately one half of a mile.
Q Please take your seat. Thank you. Now, you mentioned
earlier you were taking pictures; is that correct?
A That's correct.
Q What camera were you using?
A A Canon EOS Rebel.
Q Was it in good working order that day?
A Yes, it was.
MR. BENNETT: I'd now like to show Exhibit 15 and 16
to the witness, please.
Q (BY MR. BENNETT) They should be side-by-side. Do you see
those?
A Yes, I do.
Q What are Exhibits 15 and 16, Chief Moore?
A Those are photographs I took from my observation post
within the closure area of Recapture Canyon.
Q On what date were these photos taken?
A That was May 10th, 2014.
Q Are these a true and accurate representation of the
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photos you took that morning?
A Yes, they are.
MR. BENNETT: Your Honor, I move Exhibits 15 and 16
into evidence.
MR. CRANE: No objection.
MR. STUBBS: No objection.
MS. PRESTON: No objection.
MR. GARRETT: No objection, Your Honor.
THE COURT: They're received without objection.
(PLAINTIFF'S EXHIBITS 15 AND 16 RECEIVED)
MR. BENNETT: Publish those to the jury, please, may
we, Your Honor?
THE COURT: You may.
Q (BY MR. BENNETT) Chief Moore, do you know -- do you
recognize the folks that are on these ATVs here in Exhibits 15
and 16?
A Do I recognize them or know them?
Q Do you know them?
A No, I do not.
Q And at the time you took the picture, were you aware of
who they were?
A No, I was not.
Q Did you subsequently learn who they were?
A Yes, I did.
Q And how did you learn that?
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A I showed photographs to the Forest Service law
enforcement officer in Monticello and he was able to identify
them.
Q And who was -- who was the --
MS. PRESTON: Objection, hearsay, Your Honor.
THE COURT: Overruled.
Q (BY MR. BENNETT) Who was the name of the Forest Service
officer to whom you showed these photos?
A Officer Scott Watson.
Q I'd now like to show you what has been marked as
Government Exhibit 7. Do you recognize that exhibit?
A I do.
Q What is it?
A That is a photograph that I took from my observation post
the morning of May 10th, 2014 within the closure area of
Recapture Canyon.
Q Is it a true and accurate representation of the photo you
took that morning?
A Yes, it is.
MR. BENNETT: Your Honor, I move Exhibit 7 into
evidence.
MR. CRANE: No objection.
MR. STUBBS: No objection.
MR. GARRETT: No objection, Your Honor.
MS. PRESTON: No objection.
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THE COURT: It's received.
(PLAINTIFF'S EXHIBIT 7 RECEIVED)
MR. BENNETT: Publish it to the jury, please.
Q (BY MR. BENNETT) Chief Moore, do you recognize the
individual in -- shown in Exhibit 7?
A Yes, I do.
Q Who is it?
A That is Monte Wells.
Q Do you see Mr. Monte Wells in the courtroom here today?
A Yes, I do.
Q Could you please point him out to us?
A Right there.
MR. BENNETT: Let the record reflect the witness has
pointed to Monte -- Defendant Monte Wells, Your Honor.
The Court: It will so reflect.
Q (BY MR. BENNETT) How do you -- do you know Mr. Monte
Wells?
A Yes, I do.
Q How do you know him?
A Several years prior to this ride in Recapture there was
another protest in the area and a number of individuals from
the area walked down through Recapture Canyon, and I walked
down with them. I was in uniform at the time. And Mr. Wells
approached me and we struck up a conversation, and we hiked
and walked and talked for a while together.
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Q I'd now like to show you what has been marked as
Government's Exhibits 5 and 6. And, again, these will be
displayed side-by-side. Do you recognize Exhibits 5 and 6?
A Yes, I do.
Q What are they?
A Those are photographs I took from my observation post
within the closure area of Recapture Canyon on the morning of
May 10th, 2014.
Q Are they a true and accurate representation of the photos
you took that morning?
A Yes, they are.
MR. BENNETT: Your Honor, I move Exhibits 5 and 6
into evidence.
THE COURT: They're received without objection.
(PLAINTIFF'S EXHIBITS 5 AND 6 RECEIVED)
Q (BY MR. BENNETT) Do you recognize --
And we publish those to the jury, please.
I'd like to direct your attention to the individual that
appears to be driving this vehicle. Do you recognize that
individual?
A Yes, I do.
Q Who is it?
A That is Phil Lyman.
Q Do you see Mr. Lyman here in the courtroom today?
A Yes, I do.
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Q Would you please show -- point him out to us.
A Right there behind you, right there.
MR. BENNETT: Let the record reflect that Chief
Wells has pointed to Mr. Lyman.
THE COURT: It will.
Q (BY MR. BENNETT) Do you know Mr. Lyman?
A Yes, I do.
Q How do you know him?
A I know him from -- I've attended county commission
meetings in San Juan County and I've seen him there. I've
spoken to him on the phone once or twice, and know -- just
know him as a political figure in San Juan County.
Q Now, are you familiar with the -- the business Four
Corners Adventures in Blanding, Utah?
A Yes, I am.
Q What is it?
A It's an ATV/UTV rental company.
Q Now, do they mark their vehicles that they rent out?
A Yes, they do.
Q And just drawing your attention to Exhibits 5 and 6, do
you see any markings on the UTV that Mr. Lyman was driving?
A Yes, I do.
Q And what are those marked?
A They're marked Four Corners.
Q About how long were you in Recapture Canyon on the
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morning of May 10th, 2014?
A We were in there approximately -- we started hiking in
about 6:00 o'clock in the morning and we left at about 11:00
o'clock in the morning.
Q Had all the riders gone past when you left?
A No, they had not.
Q Why did you leave then?
A We left -- prior to the ride I was working with the San
Juan County Sheriff, Rick Eldredge, a lot in regard to this,
and we agreed that the safest way to go about it was we would
be down there, and he guaranteed our protection in the canyon
as long as we listened to what he said. We had to listen to
his instructions. And at approximately 11:00 o'clock he asked
us to leave the canyon, so we packed up our backpacks and we
hiked out.
Q I want to talk to you for a moment about the trail
cameras. Now, you referenced that you had set those up on May
9th, 2014. Is that a correct memory there?
A Yes, that's correct.
Q Did you ever check to see what those cameras had
recorded?
A Yes, I did.
Q What did you find?
A I found they took a lot of photographs, however, the
photographs were extremely overexposed.
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Q What do you mean by overexposed?
A Overexposed on the trail cameras. They're designed to
take photographs of day or night, so as part of that they've
got a small light sensor on there, and somehow that light
sensor was malfunctioning so they thought it was nighttime all
of the time. So in the photographs there's a lot of white
light in the photographs.
Q Kind of like a polar bear in a snow storm, is that what
it looked like?
A That's exactly, yes.
Q I'd like to -- but were these overexposed photos useless
to your investigation?
A No, they were not.
Q What did you find as you looked at these overexposed
photos?
A At the overexposed photos we found the trail cameras in
Browns Canyon we could see riders going up the canyon, ATVs,
UTVs, saw people on horseback, people walking.
Q Now, you mentioned Browns Canyon. Which trail cameras
were those that you marked on Exhibit 2A?
A Trail cameras two and three.
Q I'd now like to direct your attention to Exhibits 17B and
17C. Do you recognize both of those?
A Yes, I do.
Q What are they?
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A Those are photographs from the trail camera in Browns
Canyon.
Q So is that trail camera two and three?
A Yes.
Q Is this an accurate representation of what you found from
those trail cameras?
A Yes, it is.
MR. BENNETT: Your Honor, I would move Exhibit 17B
and 17C into evidence.
MS. PRESTON: No objection.
MR. STUBBS: No objection.
MR. GARRETT: I would object, Your Honor, of them
not being a fair and accurate depiction. Given the light of
this trail camera, you don't know or can't see what's in
there, and it may give reference to things that may not be
there, mislead the jury. So my -- my would be -- it's not a
fair and accurate position -- a fair and accurate depiction of
what's in the picture. And also, Your Honor, I think it's
prejudicial of what may -- or assumption of what may be
there.
THE COURT: Overruled. It's received. Both
Exhibits 17B and 17C are received.
(PLAINTIFF'S EXHIBITS 17B AND 17C RECEIVED)
MR. BENNETT: Publish those to the jury, please.
Q (BY MR. BENNETT) Chief Moore, what do you -- what is
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depicted here in 17B and 17C?
A Both 17B and 17C show riders on ATVs traveling up Browns
Canyon.
Q And this is past the turnaround area?
A Yes, it is.
MR. BENNETT: Your Honor, may I just have a moment?
THE COURT: Of course.
MR. BENNETT: Thank you.
(BRIEF PAUSE)
Q (BY MR. BENNETT) Chief Moore, are you aware of whether
anyone has filed any kind of a civil action to challenge the
closure of Recapture Canyon?
A No, they have not.
MR. BENNETT: No further questions.
CROSS-EXAMINATION
BY MR. CRANE:
Q Chief Moore, you testified that you're familiar with
Recapture Canyon; is that correct?
A Yes.
Q And I think you testified you've been there approximately
six times in that Canyon?
A Yes.
Q To your right is that binder there. If you could open
that up to defense proposed Exhibit 1000, should be the first
tab.
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A You said 1000?
Q Yes. You can take a look at that. Do you recognize that
document?
A It's an aerial photograph is all I see.
Q Okay. Do you recognize what it's an aerial photograph
of?
A No, I don't.
Q Okay. You don't -- you don't recognize this at all?
A I'm sorry?
Q You don't recognize defense exhibit -- proposed Exhibit
1000?
A Well, I would assume it's Recapture Canyon, but with this
I don't know.
Q That's okay. I don't want you to assume. Can you -- is
it Recapture Canyon or is it not?
A I can't tell you for sure.
Q Okay, that's perfect. You talked about the trail here,
and you marked some of the postings there. I just want to
talk a little bit about the trail and the map. You mentioned
that the water conservancy put a pipeline into this area; is
that right?
A Yes.
Q And in fact the trail up to the turnaround spot, the
pipeline is buried underneath that trail; isn't that right?
A That's correct.
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Q And this -- and this pipeline was put in back in 1986,
correct?
A I don't know the date.
Q Okay. But the water conservancy does have a right-of-way
and they continue to maintain this trail; is that right?
A Whether they maintain it or not, I don't know.
Q Okay. But the pipeline is still there and being used as
far as you know, correct?
A Yes, correct.
Q And in fact oftentimes this trail is referred to as the
pipeline trail or the pipeline portion of Recapture Canyon,
correct?
A I have never heard it called the pipeline trail.
Q Okay, that's fair enough. On the map here --
If I could approach?
THE COURT: Please.
Q (BY MR. CRANE) Chief Moore, can you see where I'm at? I
just want to point to a couple things.
A Yes.
Q Okay. So this first sticker here there's a red line.
That's where you indicated the Recapture Canyon is closed and
where this sign was posted, correct?
A Correct.
Q And so this portion of the trail, this is -- north of
that is part of Recapture Canyon, correct?
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A Correct.
Q And this is actually open to ATV use, correct?
A Correct.
Q And to access that point you have to come off the freeway
here and there's an entrance that goes down into Recapture
Canyon, correct?
A Off the highway, yes.
Q Yes. And then the reservoir is just on the other side of
the freeway, and I think it's depicted right here; is that
correct?
A That's the l