July 22, 2018

Tenth Circuit: Defendants Found Liable for ATV Protest Ride on Recapture Canyon in Utah

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wells on Monday, October 23, 2017.

In 2007, the Bureau of Land Management (BLM) closed part of Recapture Canyon in Utah to all-terrain vehicles (ATVs) due to potential damage to the soil and archaeological sites. Although this was intended to be temporary, the order was still in place in 2014. Upset at the delay in reopening, County Commissioner Lyman organized a protest ride on ATVs into the closed portion of the Canyon. Wells, who ran a website that reported on local news, assisted and interviewed Lyman, while also encouraging others to the protest. Despite warnings from the BLM that criminal and civil penalties would be enforced against anyone riding ATVs in the closed portion of the Canyon, the ride took place in May of 2014. There is undisputed evidence that both Lyman and Wells rode ATVs in the protest.

At trial, Lyman and Wells were found guilty for riding ATVs on the closed lands and with conspiracy to do the same. On appeal, Defendants seek a new trial, arguing that a reasonable observer would have questioned the district judge’s impartiality. Although the judge did ultimately recuse before sentencing, Defendants contend he should have recused earlier. Further, they challenge the denial of their motions to dismiss the criminal information, the denial of a new trial, and their restitution order. Lyman separately argues that he was deprived of effective assistance of counsel. The Tenth Circuit addressed each claim in turn.

The first argument was that the district court judge, Judge Shelby, should have recused earlier in the trial. Judge Shelby is close friends with the legal director for the Southern Utah Wilderness Alliance (SUWA), an organization that was opposed to the protest ride. The ultimate recusal was based largely on a letter to the judge signed by SUWA and other conservative groups that expressed views adverse to Defendants, as well as evidence that showed SUWA had extensive pretrial involvement with the case in passing information to BLM officials and the United States Attorney’s Office.

Defendants argued for a new trial, contending that Judge Shelby ought to have recused from participation in the trial because a reasonable observer would have questioned his impartiality, as Judge Shelby should have been alerted to SUWA’s involvement by their legal director’s presence at trial and by a voir dire question asking potential jurors if close friends or family members were in SUWA.

The Tenth Circuit found that the argument for a new trial failed on the merits. The Circuit reviewed Judge Shelby’s decision not to recuse early in the trial for an abuse of discretion and found that the decision not to recuse could not be characterized as arbitrary or manifestly unreasonable. The Tenth Circuit concluded that recusal was not required where SUWA was not a party to the criminal prosecution, and, further, there was no evidence that Judge Shelby should have known about SUWA’s pretrial involvement. As Judge Shelby did not err in failing to recuse, Defendant were not entitled to a new trial.

The Defendants next challenged the denial of their motions to dismiss. Wells claimed that he could not be prosecuted for his activities because they consisted of protected speech under the First Amendment. To determine whether Wells’ conduct was protected, the Tenth Circuit inquired as to whether there was a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for the hostility toward the defendant because he exercised his specific legal rights.

Wells argued that the prosecution’s hostility became evident when showings were made that SUWA had pushed for prosecution of the Canyon riders and that they regularly passed Wells’ social media posting on to prosecutors. However, the Tenth Circuit found that Wells did not present any evidence of prosecutorial hostility toward Wells’ exercise of his First Amendment rights. SUWA was simply interest in protecting the Canyon, not in limiting Wells’ First Amendment rights. The Circuit held that Wells failed to establish the requisite vindictiveness from the prosecution.

Lyman argued that the district court erred in denying his motion to dismiss when the government failed to allege interdependence, a required element of conspiracy. The Circuit applied a two-part test to determine the sufficiency of an indictment: First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause. The Tenth Circuit found that Lyman’s argument implicated only the first prong of this test. Further, Lyman and Wells worked together for their mutual benefit in the context of their conspiracy to ride ATVs on the Canyon in protest. The Tenth Circuit found that Lyman’s motion to dismiss argument failed.

Next, Wells argued that the government failed to introduce sufficient evidence that he was acting as a co-conspirator rather than a journalist. The Tenth Circuit inquired whether the evidence would establish each element of the crime of conspiracy, to wit: (1) an agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the conspiracy’s object, and (5) proof that the defendant willfully entered the conspiracy. The Circuit found that the evidence presented by the government was sufficient for a jury to find beyond a reasonable doubt that Wells acted not merely as a journalist reporting on issues, but as a co-conspirator who agreed with Lyman to ride on the closed lands. More specifically, Wells reposted Lyman’s advertisements of the protest ride while adding flourishes of his own that suggest active support for, and agreement with, the planned ride.

Defendants next contested the district court’s denial of their motion for a new trial based on the post-trial discovery of a map which allegedly showed a right-of-way that the government failed to disclose before trial. Defendants argued that (1) the map would have permitted them to establish the existence of a right-of-way to negate the legality of the closure order on the Canyon, and (2) they should have been able to present the map as evidence relevant to their good-faith defense, since violation of the laws at hand require that the defendant act knowingly and willfully. The government argued that no violation occurred because the map in question was not material.

The Circuit found that the materiality of the map was at issue in this appeal. Materiality requires a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed. The Tenth Circuit concluded that the map could not have been material for purposes of the Defendants’ good-faith defense, and, as the district court pointed out, the map could not be relevant because the Defendants were unaware of the map at the time of the ATV ride. A mere suspicion that a right-of-way existed is not an honest belief that the road was not legally closed to ATV use. The Tenth Circuit found that the Defendants could not establish that the map would have been material to their good-faith defense. Further, the map failed to create a reasonable probability of a different outcome so as to cast doubt on Defendants’ convictions. The Circuit held that the district court properly denied Defendants’ motion for a new trial.

Wells next challenged the restitution order holding him jointly and severally responsible with Lyman for $48,000. Wells challenged that it included: (1) harms that were not recoverable as restitution because they were not caused by the conspiracy and its underlying conduct, and (2) amounts that were not legally cognizable as actual loss or supported by the evidence. Lyman made a similar argument. Under the Mandatory Victims Restitutions Act (MVRA), courts are required to order a defendant to pay restitution to a victim of the offense. No party disputed that the United States constituted a victim under the MVRA; however, the question was for which alleged harms could the United States properly recover restitution. The government was required to show both that the defendant’s conduct was the ‘but-for’ cause of the harm and that the defendant proximately caused the harm.

The government’s principal contention was that the conspiracy and its underlying conduct was the but-for cause of the motorized damage to archeological, riparian, and upland soil resources in the closed area. The Tenth Circuit concluded that the government presented ample evidence to find by a preponderance of the evidence that the government’s contention was correct. The district court did not err in ruling that Defendants were responsible for paying restitution to the United States for damages stemming directly and proximately from Defendants’ unlawful conspiracy to conduct a protest ride.

Next, Defendants challenged three aspects of the total amount of restitution ordered: (1) that the amount spent assessing the damage caused by the ATV ride was disallowed, speculative archeological expenses; (2) that the assessment costs were not incurred during participation in the investigation or prosecution of the offense; and (3) that at least some of the claimed amount was supported by estimates, not concrete figures. The Tenth Circuit first found that the government’s requested damages did not constitute speculative, archaeological damages. The archaeological value is an effort to go back in time before the violation occurred and estimate what it would have cost the United States to engage in a full-blown archaeological dig at the site, notwithstanding the fact that the United States had no plans to engage in any such effort. The Circuit held that the assessment that took place was detailed and anything but hypothetical.

Second, the MVRA provides that a victim must be reimbursed for expenses incurred during participation in the investigation or prosecution of the defense. The Tenth Circuit rejected Defendants’ assertion that the expenses were not incurred during the government’s participation in the investigation or prosecution of the offense, as the court has specifically recognized that the government’s investigatory costs can constitute actual losses subject to restitution.

Third, the Circuit concluded that the third argument was based on a mistaken view of the record. The government did not admit that its damages were not hard numbers. In context, the prosecutor was attempting to explain why restitution figures from an earlier case could not be considered as a basis for comparison in the present case. The Circuit found Defendants’ final argument misguided and spurious. The district court’s restitution award was upheld.

The last argument by Lyman was ineffective assistance of counsel. The Tenth Circuit found that ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed. As Lyman made no attempt to argue that his claim should be addressed on direct appeal, the Tenth Circuit saw no reason to reach its merits.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s judgment and restitution order.

Tenth Circuit: Express or Implicit Dispute of Title Necessary to Trigger Quiet Title Act’s “Disputed Title” Requirement

The Tenth Circuit Court of Appeals issued its opinion in Kane County, Utah v. United States on Tuesday, December 2, 2014.

In April 2008, Kane County, Utah brought an action under the Quiet Title Act (QTA), 28 U.S.C. § 2409a, to quiet title to five roads in southern Utah. It later amended its complaint to cover 15 roads or road segments. The county asserted the rights-of-way pursuant to R.S. 2477, which reserved a right-of-way for construction of highways over public lands not reserved for public uses. R.S. 2477 was repealed by the Federal Land Policy and Management Act of 1977 (FLPMA)  but existing rights-of-way were preserved. The State of Utah intervened in the county’s action as co-plaintiff. After a 9-day bench trial, the district court issued two orders. In the first order, the district court held that it had subject matter jurisdiction under the QTA as to all 15 roads at issue. The second order made findings of fact and addressed the merits, finding that Kane County and Utah had proven R.S. 2477 rights-of-way on 12 of the 15 roads and setting proper widths for the rights-of-way. Both orders were challenged on appeal.

Kane County and Utah argued that the district court erred by finding that Public Water Reserve (PWR) 107 reserved two parcels of land from the operation of R.S. 2477. They also challenged the district court’s requirement of proof by clear and convincing evidence of the R.S. 2477 rights-of-way. The United States also appealed, claiming that the district court lacked jurisdiction over the county’s claims regarding several roads because of the absence of a disputed title to real property. The United States also contended the district court erred in setting widths for the rights-of-way on three of the roads.

The Tenth Circuit first examined the subject matter jurisdiction claims of the United States and amici. For a court to have jurisdiction over a QTA claim, the plaintiff must show that (1) the United States “claims an interest” in the property at issue, and (2) title to the property is “disputed.” The Tenth Circuit, as a matter of first impression, evaluated what requirements satisfy the QTA’s “disputed title” requirement. The Tenth Circuit rejected the Ninth Circuit’s “cloud on title” standard and instead held that, to satisfy the QTA’s “disputed title” element, the plaintiff must show that the United States has either expressly disputed title or taken action that implicitly disputes it. Actions that produce ambiguity are not enough to satisfy the disputed title element.

Turning its attention to the roads at issue, the Tenth Circuit found that the district court did not have jurisdiction over the Sand Dunes Road and the Hancock Road. These roads were omitted from a BLM map, but later the map was amended to show the roads. The district court ruled this created an ambiguity as to the legal status of the roads, but the Tenth Circuit found the ambiguity was insufficient to satisfy the QTA’s disputed title element and therefore the district court lacked jurisdiction. The Tenth Circuit also found the district court lacked jurisdiction as to the four cave roads. The district court’s treatment of the United States’ denial of allegations as sufficient to establish jurisdiction was in error.

Amici had argued the plaintiffs lacked R.S. 2477 jurisdiction over another road, the North Swag Road, because the QTA’s limitations period had expired. The Tenth Circuit found that the limitations period was not triggered because no adverse action had occurred.

The Tenth Circuit then turned its attention to the district court’s conclusion that PWR 107 had served to “reserve” two parcels of land across which Swallow Park Road runs from operation of R.S. 2477. The Tenth Circuit analyzed PWR 107, finding that it was intended to provide public access to certain water springs, and noted that it would be “nonsensical” to hold that the provision of public access to the springs expressly excluded the construction of roadways under R.S. 2477 on which the public could access the water springs. The Tenth Circuit reversed the district court’s determination that plaintiffs could not establish a right-of-way on the part of Swallow Park Road running through the two reserved parcels of land.

Finally, the United States argued that the district court erred by not designating right-of-way widths on three roadways on the uses established in 1977, and by improperly allowing room for improvements on the roadways. The Tenth Circuit agreed on both points. The district court was required to inquire as to the reasonable and necessary uses of the road, and expansions are only allowable when reasonable and necessary in light of pre-1977 uses of the roadways. Similarly, the district court exceeded its authority by allowing room for improvements. The Tenth Circuit likened this to putting the cart before the horse, finding instead that if the roadways needed improvements the land management agency must be consulted and allowed an opportunity to determine if the improvements are reasonable and necessary.

The judgment of the district court was affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: The Government Has the Right to Regulate Its Own Property

The Tenth Circuit Court of Appeals issued its opinion in United States v. Jones on Friday, October 3, 2014.

Stanley Jones is a cattle rancher in Wyoming. His brother owns base properties close to two BLM public lands — the Sandstone and Cannady allotments. Mr. Jones frequently allows his cattle to graze on the BLM lands, despite lacking a permit to do so lawfully. After numerous administrative trespass notices and fines, the BLM brought criminal charges against Jones through the U.S. Attorney’s Office in Wyoming for one count of unlawful use of public lands and two counts of allowing his livestock to graze on public lands without authorization. Mr. Jones pled not guilty to all charges and requested a jury trial. At trial, Mr. Jones was convicted on all counts and sentenced to two years probation on each count, to be served concurrently, a $3,000 fine, a $75 special assessment fee, all contingent on his compliance with certain terms and conditions. Pro se, Mr. Jones appealed his convictions.

Mr. Jones implored the Tenth Circuit to consider the true and honest facts, which the Tenth Circuit considered a sufficiency of the evidence challenge. The Tenth Circuit considered the evidence against Mr. Jones, including that he has never been a permittee for grazing on public lands, he was told numerous times that he was not allowed to graze his cattle on the lands, he was told to remove his property from public lands, and he was fined for failure to remove his property and cattle from the public lands. The Tenth Circuit found overwhelming evidence to support Mr. Jones’ convictions.

The Tenth Circuit next addressed Mr. Jones’ contention that the trial court should have allowed his proposed testimony that the government should comply with Wyoming’s fence-out laws. However, this testimony was not related to the issues at hand, and it would have confused the jury. The government has the right to regulate its own property. The trial court’s exclusion of the fence-out evidence was proper.

The Tenth Circuit affirmed Mr. Jones’ convictions.

 

Tenth Circuit: BLM’s Decision to Grant Grazing Permit Not Arbitrary and Capricious

The Tenth Circuit Court of Appeals published its opinion in Western Watersheds Project v. Bureau of Land Management on Tuesday, July 23, 2013.

Petitioner-Appellant Western Watersheds Project (“WWP”), a nonprofit public interest organization, challenged a Bureau of Land Management (“BLM”) decision to grant a 10-year grazing permit to LHS Split Rock Ranch, LLC (“Split Rock”) for four federal public land allotments in central Wyoming (“the Split Rock allotments”). Split Rock is a Delaware limited liability company that operates a ranch in central Wyoming. WWP asserted that BLM’s decision to grant the grazing permit was arbitrary and capricious because BLM had previously concluded that past grazing was a substantial cause of serious environmental degradation on the Split Rock allotments. The district court had granted summary judgment in favor of BLM and WWP appealed. Split Rock responded as Intervenor-Appellee.

The Tenth Circuit’s standard of review under the APA had to be very deferential. A presumption of validity attaches to agency action and the burden of proof rested with WWP.

WWP raised two issues on appeal. First, it argued that the Environmental Assessment (EA) failed to evaluate a reasonable range of alternatives as required under the National Environmental Policy Act (NEPA). Second, it argues that BLM failed to take the required “hard look” at the potential environmental consequences of its actions. After discussing each of these issues, the Tenth Circuit concluded that BLM’s decision was not arbitrary and capricious.

The Tenth Circuit noted that WWP raised serious questions about BLM’s decisions regarding the Split Rock grazing permit that made the case difficult even under the highly deferential review standard. The record revealed troubling problems with the Split Rock allotments, and even BLM implicitly acknowledged that its Proposed Decision was unlikely to remedy these problems quickly. Nevertheless, it was not within the Court’s authority to resolve whether BLM selected the best or wisest option, and Court could not substitute its judgment for that of the BLM.

WWP argued that the (EA) failed to evaluate a reasonable range of alternatives as required by NEPA because it analyzed only three alternatives. WWP pointed to two problems: failure to analyze the No Action alternative and failure to consider an aggressive, i.e., environmentally protective, alternative. WWP argued that BLM was required to include a detailed analysis of the No Action alternative under 40 C.F.R. § 1502.14. The problem was that § 1502.14 did not apply. Further, the Court found BLM’s effort to balance competing objectives sufficient to explain its failure to pursue aggressive environmentally protective alternatives. The Court could therefore not conclude that the range of alternatives BLM selected rendered the EA arbitrary and capricious.

Next WWP argued that the EA failed to take a “hard look” at the environmental consequences of its Proposed Decision as required by NEPA. Specifically, WWP argued that the EA failed to take a hard look at carrying capacity (maximum stocking rate possible without inducing damage to vegetation or related resources) and at the effects of its own Proposed Decision. Mindful that its deference is most pronounced with respect to technical or scientific matters within the agency’s area of expertise, the Tenth Circuit could not say that it was arbitrary and capricious for BLM to conclude that the stocking level in the Proposed Decision would not exceed carrying capacity. The Court’s review of the EA and the Proposed Decision indicated that BLM analyzed the various components of the plan sufficiently to meet NEPA’s hard look requirement and did not act arbitrarily or capriciously.

AFFIRMED.