Public Lands Policy Coordination Office

Constitutional Defense Council

Public Lands Policy Coordination Office

Senate 210

Utah State Capitol Complex—Senate Building

June 24, 2015

9:00 a.m.

Minutes

Attendees:

Members: Staff:

Spencer J. Cox, Lt. GovernorJohn Harja, Senior Policy Analyst, PLPCO

Mike Noel, Rep., Utah House Anthony L. Rampton, Public Lands Section

Brian King, Rep., Utah House Director, Attorney General’s Office

Mike Styler, Executive Director, DNRKathy Davis, Assistant Attorney General

Gene Davis, State SenateSindy Smith, RDCC Coordinator, PLPCO

Kevin Van Tassell, State SenateStephen Lefevre, Lt. Governor’s Office

Troy Forrest for LuAnn Adams, UDAFSam Guylesnis, Governor’s Office

Mike McKee, Commissioner,Uintah CountyZechariah Haws, Governor’s Office

Alan Roper, Commissioner, Millard CountyBen Onofrio, Governor’s Office

Leland Pollock, Commissioner, Garfield County

Keven J. Stratton, Rep., Utah House

Val Hale, Director, GOED

Parker Douglas for Sean Reyes, Attorney General

Kim Christy for Kevin Carter, SITLA

Guests:

Mark Ward, Utah Association of Counties

Mike Mower, Governor’s Office

Ken Ivory, Rep., Utah House

Alan Gardner, Commissioner, Washington County

Phil Lyman, Commissioner, San Juan County

Stan Summers, Commissioner, Box Elder County

Gordon Topham, Commission, Sevier County

James Ebert, Commissioner, Weber County

Jeff Hadfield, Commissioner, Box Elder County

Dennis Blackburn, Commissioner, Wayne County

Stanley Wood, Commissioner, Wayne County

Ken Burdick, Commissioner, Duchesne County

Greg Todd, Commissioner, Duchesne County

Guests (Continued):

Mark Whitney, Commissioner, Beaver County

Dell LeFevre, Commissioner, Garfield County

Darin Bushman, Commissioner, Piute County

David Miller, Commissioner, Iron County

Doug Heaton, Commissioner, Kane County

Craig Todd, Commissioner, Duchesne County

Dennis Blackburn, Commissioner Wayne County

Merle White, Utah County

Greg Funk, Emery County Sheriff

Rick Eldredge, San Juan County Sheriff

Tracy Glover, Kane County Sheriff

Kamille Glover, Kane County Sheriff

Pat Shea, PAS, PC

Steve Erickson, GBWN

Deeda Seed, SUWA

DownysRomboy, DN

S. Rich, RRA

S. Kinsel, RRA

Nicoch Nelson, League of Women Voters

Bob Bernud, citizen

Donne Weinholtz, citizen

Cecelia Adelhardt, citizen

Alex Steckel, citizen

Maggie Laun, citizen

Daniel Dargor, citizen

O. Dang, citizen

Kirk Robinson, citizen

Craig Trujillo, citizen

Brad Swedlund, citizen

Carol Wiggins, citizen

Jay Jacobson, citizen

Katie Pappus, citizen

Derek Dowsett, Producer of the County Seat

Judy Fahys, KUER

Michelle Price, AP

Brian Maffly, Tribune

Tauna L. Price, ABC 4

Chad Booth, The County Seat TV

Ria Rossi-Booth, The County Seat TV

Colby Frazier, City Weekly

Michael Orton, Utah Political Cap, Yahoo News

______

Welcome and Introductions

Lieutenant Governor Spencer J. Cox called the meeting to order at 9:00 a.m. and welcomed everyone.

Approval of the Minutes

Members unanimously approved the October 16, 2014minutes.

Request for Reimbursement: Kane County

Based on the enacted and Amended Reimbursement Plan for Private Legal Services, Commissioner Douglas K. Heatonrequested reimbursement of Kane County’s R.S. 2477 litigation legal services for FY 2015. Kathleen Clarke, Director, Public Lands Policy Coordinating Office, and Anthony Rampton, Assistant Attorney General and Director of the Public Lands Section,approved Kane County’s grant application June 23, 2015. Kane County has complied with the plan’s requirements andmet the criteria for reimbursement.

Discussion

The discussion covered the following remarks:

Leland Pollock, Garfield County Commissionerand Chairman of the Public Lands Client Committee, made a MOTION to fund Kane County’s request for reimbursementof its R.S. 2477 litigation legal services for FY 2015.
Representative Brian King asked foran R.S. 2477 litigation update, and specifically,on the rulings that have not been helpful for the state.
Anthony Ramptonprovided an update on the R.S. 2477 litigationand explained thatthe ruling against the state and county concerned inadequate dispute to title, which is necessary to gain jurisdiction under the Quiet Title Act. He said the stateis seeking U.S. Supreme Court review of that ruling because now there is a conflict between the circuit courts,andthecircuit court ruling simplydelays the issue. Rampton continued to say that in the interim period,whichthe stateis required to rely on to prove those roads,the witnesses are dying. So there is enormous prejudice to the state and the county in delays that would result by reasons of this ruling on dispute to title.
With no further discussion, Lt. Governor Cox, after a roll count, declared the voting unanimous in the affirmative. The MOTIONto fund Kane County’s request for reimbursement of its legal services carried unanimously.

Request for Funds: Utah Association of Counties

Lt. Governor Spencer Cox thanked the county sheriffs andthe commissionersfor taking the time to attend the meeting and expressed appreciation for their service. Lt. Governor Cox explained that because the issue of Recapture Canyon is very controversial with the potential for litigation, the meeting will likelygo into a closed executive session. Lt. Governor Cox asked Representative Mike Noel, the Vice Chair, to talk about the Recapture Canyon dispute.

Representative Mike Noel presented a map of Recapture Canyon and discussed its history in terms of the road closure issue and receiving or using a right-of-way under Title V of the Federal Land Policy and Management Act of 1976. Rep. Noel summarized Commissioner Phil Lyman’s reasons for riding through Recapture Canyon and conveyed admiration and support for the commissioner. Rep. Noel concluded by saying that the charges should have never been brought against Mr. Lyman, claiming the federal judge refused to allow evidence about the access to the roads in Recapture Canyon.

Discussion

The discussion covered the following comments:

Commissioner Leland Pollock read from a court transcript a statement made by U.S. District Court Judge Robert J. Shelby,in which Judge Shelby disclosed his longtime association and friendship with Steve Bloch, Legal Director for Southern Utah Wilderness Alliance (SUWA) and his family.
Representative Brian King voiced his concern of assisting a criminal defendant in a criminal case as opposed to a civil case. He continued to say that the case may not have much relevance to the state’s civil public land issues. Rep. King said the council should limit its legal interests to civil matters because the state has little to gain from participating in Commissioner Lyman’s criminal defense.
Representative Mike Noel restatedthe issue as a right-of-way casecritical to the State of Utah. He also mentioned that he made a request for funds from the CDC forCommissioner Lyman’s defense and potential appeal. Rep. Noel indicated that Commissioner Lyman never asked for state representation.
Representative Keven J. Stratton acknowledgedhis support for Commissioner Lyman and expressed appreciation for all perspectives. Rep. Stratton indicated hisconcernwith a civil actionthat turned to criminal charges and the motivation behind that transformation. He also definedCommissioner Lyman’s issue as a micro issue,which he said is related to the state’s macro problem. The macro problem being the issue of whether the road was properly and legally closed. In that light, he claimed, there is a state interest.
Representative Stratton made a MOTION to close the meeting for executive session to discuss sensitive legal issues. With no further discussion, Lt. Governor Cox, after a roll count, declared the voting unanimous in the affirmative. The MOTION to move to executive session carried unanimously.

Closed Session

Executive Session

Appropriation Request

Representative Noelmade a MOTION to end the executive session and open the meeting. With no further discussion, Lt. Governor Cox, after a roll count, declared the voting unanimous in the affirmative. The MOTION to move to an open meeting session carried unanimously.

Open Session

Request for Funds: Utah Association of Counties

Lt. Governor Spencer Cox spoke about the appropriation request discussion and then asked Commissioner Kerry Gibson, President of Utah Association of Counties (UAC), to read the Appropriation Request delivered to CDC members.

Commissioner Kerry Gibson read verbatim the Appropriation Request:

“Appropriation Request for funds in the amount of $100,000.00 to the Utah Association of Counties (UAC) for the purpose of providing legal counsel, advice, and representation to county officials who face charges for acting to address critical issues in their community with the good faith belief they are acting within the bounds of the law.”

Commissioner Gibson stated that UAC requested the funds from the CDC out of concern for elected officials,who acting within the bounds of the law and in good faith,cannot do their job without facing criminal prosecution. Commissioner Gibson thanked CDC members and Representative Noel for their willingness to support Commissioner Lyman on this extremely important issue. Commissioner Gibson concluded by saying that UAC recognizesthe challenges with the requestand formally withdrew the funding request.

Lt. Governor Cox duly noted UAC’s request to withdrawal its funding request.

Discussion

The discussion covered the following remarks:

Commissioner Mark Whitney, Beaver County, expressed strong support for Commissioner Phil Lymandescribing him as a good man who stands for a good cause. He explained that Commissioner Lyman challenged the issue of federal road closures in Utah for the health, safety, and welfare of San Juan County citizens. Whitney called for and pledged his financial support for a defense fund for Commissioner Lyman.
Lt. Governor Cox shared his thoughts and concerns for how the case was handled, presented and ruled upon, and was troubled by thecaricature of Commissioner Lyman that has emerged in the media. He acknowledged Commissioner Lyman as one of the finest individuals who he has known, and that the State of Utah and the County of San Juan are tremendously fortunate to have a public servant like Phil Lyman. Lt. Governor Cox emphasized that for the benefit of Commissioner Lyman, in order to give him the best possible defense, he would contribute to the defense fund. He encouragedothers who concur with this issue to donate generously. He also announced that Governor Herbertwould be writing a check for $10,000. Lt. Governor Cox concluded by applauding Representative Noel for taking on this issue and being the valiant defender.

Representative Noel thanked the Lt. Governor Cox and members of the CDC for backing Commissioner Lyman. He expressedhis support for this outcome and indicated that he would also contribute generously to Phil Lyman’s defense fund. Representative Noel discussed Commissioner Lyman’s family and the extraordinary service the commissioner provides his community.
Commissioner Leland Pollocktalked about his high regard for Commissioner Lyman and contributed $1,000 to the defense fund.
MOTION: Representative Brian King moved to take public comment. He stated that we have not heard from one person in the public who has expressed a contrary viewpoint, which reflects the voluminous communications that he had received.
Lt. Governor Cox noted Rep. King’s MOTION to go to public comment. He asked to hear from the remaining members of the CDC on the issue and then take up the motion.
SUBSTITUTE MOTION: Representative Noel offered a substitute motion to continue the discussion with the CDC committee and then go to public comment.
SUBSTITUTE MOTION:A vote was taken. The “I’s” prevailed. The discussion with members of the CDC will continue then go to public comment.
Representative Keven Stratton pointed out that we should be careful and cautious not to convict by accusation. He mentioned that although this case was tried by a jury, it does not mean guilt. It means that the jury reached its decision according to the rules laid down by the presiding judge. He restated the concern about the transition from civil actions turning to criminal actions. Rep. Stratton concluded by stating it is clear that there is an imbalance of the sovereignty of each political body; the public interest here is whether or not the road in Recapture Canyon was legally closed.

Public Comment

Discussion

The discussion covered the following comments:

Commissioner David Miller voicedhis support for Commissioner Lyman and expressed his opinion why this issue is a public interest matter. Commissioner Miller pledged additional monies to Commissioner Lyman’s defense fund.
Patrick Shea, attorney, pointed out that attention should be paid to the distinction between civil and criminal law. He stated that a civil remedy was available on the closed road. Shea also talked about his client, Tim DeChristopher, who did an act of civil disobedience and was punished by a $10,000 fine and 2 years in federal prison.
Commissioner Darin Bushman conveyed his support for Commissioner Lyman and pledged money to Commissioner Lyman’s defense fund.
Commissioner Doug Heaton, Kane County,put across his concern of witnessing a fellow county commissioner, who in acting in the pursuit of his duties, was charged with a felony for exercising his right under the Constitution.
Commissioner Dennis Blackburn, Wayne County,donated funds to Commissioner Lyman.
Carolyn Wiggins, a citizen, expressed her opinion that Commissioner Lyman made a choice to break the law, and he should take responsibility for his actions.
Commissioner Alan Gardner, Washington County, concurred with all of the county commissioners and contributed money as well.
Commissioner Craig Todd, Duchesne County,speaking on behalf of Chad and Rhea Booth, who donated $700 to Commissioner Lyman. Chad and Rhea are concerned with the suppression of evidence in this case and the implications the conspiracy charge may have on the freedom of the press in the case of Monty Wells. Commissioner Todd also expressed his support for Commissioner Lyman.
San Juan County Sheriff Rick Elder indicated that the Recapture Canyon event was a peaceful protest. He voiced his gratitude for the good people of San Juan County for exercising their Second Amendment right. He also expressed his respect for Commissioner Lyman and pledged his wages as well.
Dereck Dosset, Producer for the County Seat, discussed his time at the protest. He specifically mentioned that the charge of conspiracy is wrong. He also donated money.
Commissioner James Ebert, Weber County, expressed his unease as a new commissioner in representing the needs and concerns of Weber County people after what has happened with Commissioner Lyman. He also donated to Commissioner Lyman’s defense fund.
MOTION: Representative Noel moved to adjourn the meeting. The motion carried unanimously.

Adjourn

The meeting adjourned at approximately 11:40a.m.