What we have seen in Utah, especially in southern Utah, is the steady encroachment and mismanagement of federal resources that are important to our economy.
By Phil Lyman, Utah House of Representatives
This article is about that metaphor of “shifting attitudes” and the problems that arise from policy decisions based on that metaphor.
The Bureau of Land Management (BLM) manages most of the land in Utah. In Utah’s southern counties they control upwards of 90% of the land. For decades the BLM was helpful in administering the mandates of Congress. These mandates included grazing, mining, logging, farming, drilling, and any other use for which the land was suited. The BLM’s website says this about the agency’s history: “The BLM was established in 1946, but its roots go back to the years after America’s independence, when the young nation began acquiring additional lands. At first, these lands were used to encourage homesteading and westward migration. The General Land Office was created in 1812 to support this national goal. Over time, values and attitudes regarding public lands shifted, and Congress merged the GLO and another agency, the U.S. Grazing Service, creating the BLM.”
As dismissive as modern-day constructionists may be towards it, the U.S. Constitution is still the Law of the land. Claiming sifts in attitudes, does not remove an agency’s obligation to follow the Constitution, nor is Congress free from adherence. In the case of Marbury v. Madison (1803) the U.S. Supreme Court, for the first time, declared an act of Congress to be unconstitutional. In his opinion, Chief Justice John Marshall relied almost exclusively on the specific language of the Constitution, saying that it was the “paramount law of the nation” and that it constrained the actions of all three branches of the national government. The whole point of a written Constitution, Marshall asserted, was to ensure that government stayed within its prescribed limits: “The powers of the Legislature are defined and limited; and [so] that those limits may not be mistaken or forgotten, the Constitution is written.” In cases where a law conflicted with the Constitution, Marshall wrote, then “the very essence of judicial duty” was to follow the Constitution. 
What we have seen in Utah, especially in southern Utah, is the steady encroachment and mismanagement of federal resources that are important to our economy. Schools that derive much of their support from property taxes have watched the value of mineral producing property decline. Along with the decline has been a decline in their respective budgets. Statistics show, and common sense confirms, that lower funded schools with higher levels of students below the poverty line, have lower test scores. It is not a function of parenting, or teachers, but of resources that are spread too thin.
This is no accident
Declining production is not a natural phenomenon. Left to their own ingenuity and resourcefulness, people will find a way to flourish. This is a favorite quote is from the great economist Adam Smith:
 Bill of Rights Institute – https://billofrightsinstitute.org/marbury-2/
“Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice; all the rest being brought about by the natural course of things.” It is that natural course of things that has been disrupted, and not in a natural sort of way, but by design, by conspiring people in high places.
There is nothing new under the sun; or as Marcus Aurelius wrote nearly 2000 years ago in Meditations, “Consider for example, and thou wilt find that almost all of the transactions in the time of Vespasian differed little from those of the present day. Thou there findest marrying and giving in marriage, educating children, sickness, death, war, joyous holidays, traffic, agriculture, flatterers, insolent pride, suspicions, laying of plots, longing for the death of others, newsmongers, lovers, misers, men canvassing for the consulship and for the kingdom.”
So, while we may be frustrated by collusion between elite environmentalists and the federal agencies that manage the vast majority of the west, we certainly should not be dismayed or deterred in our resolve to eradicate its effects from our towns and communities. Rather, we should recognize that these things move in cycles and that now may be the right time for a peaceful revolution. If we are honest, we will acknowledge that the revolution is already in full swing. It is just that so many people are passive and wish to believe that government will fix itself. Therein lies the delusion that causes society to choose apathy rather than action. Democracies don’t speak truth to power, they change with the times, just like the BLM claims to be reacting to changing attitudes. What we have is not a changing world but an elite charade of a changing world along with a host of problems to which they, the elite, would like us to believe that they hold the only cure.
Recapture Canyon, near Blanding, Utah, deep in the “wastelands” of the west, is symbolic of the dysfunction and dishonesty surrounding the BLM’s narrative of change, complete with a metaphorical solution which, of course, includes more restrictions to the people who use and enjoy Recapture Canyon. For centuries, Recapture Canyon has been a thoroughfare for travel of all sorts, foot traffic by the ancient Anasazi, to the Spanish explorers and silver prospectors, to the Native Tribes that have come and gone in the area, to early Latter-Day Saint pioneers, to more recent adventurers and travelers. Given its proximity to the largest town in San Juan County, (a county larger than the land mass of Connecticut, Delaware, and Rhode Island, combined), Recapture Canyon is hardly isolated. Still, the environmental and industrial tourism conglomerate, working with their cronies at the BLM, and backed by insiders of all sorts in politics and the justice system, have made a determination that Recapture Canyon should be given an imaginary veil of protection that only the BLM has the power to give.
Rather than dealing with facts, they first claimed that, in 2005, an illegal road was illegally constructed using illegal equipment by people who should have been in prison before ever carrying out their illegal activities. (Yes, they like to call anything and anyone “illegal” if it helps their argument.) In 2005, the BLM began an investigation (witch hunt) into the illegal construction of the road in Recapture Canyon. The road is well documented as the first official county road in Sand Juan County, receiving an appropriation of money for its maintenance in 1889 and a record of maintenance thereafter. They prosecuted Ken Brown and Dustin Felstead, two local men whose families homesteaded on the edge or Recapture more than 100 years ago. It is hard to tell if the 2006-2010 investigation and prosecution of Ken and Dustin led to the 2009 sting operation on the entire town of Blanding for false allegations of a black-market artifacts ring, or if the raids led to the false accusations leveled against Ken and Dustin. Or perhaps both the raids and the road prosecution were part of a bigger plan to denigrate the people of Blanding to justify the Obama designation of the Bears Ears Monument in the lame-duck months of is administration. Whatever the motivating factors, these colluding parties turned a peaceful little canyon into the symbol of conflict in the West.
The map included with this article is a map of Recapture Canyon. It shows the town of Blanding with State Highway 191 running through it and crossing recapture dam. It shows recapture reservoir and Recapture Creek running south down the canyon. It shows the water pipeline for which the BLM granted a Title V permit, and it shows the travel restriction area that the BLM arbitrarily placed on 7 miles of the 37-mile-long Recapture Canyon – the 7 miles adjacent to the town of Blanding.
This travel restriction was nothing but a message to the people of Blanding, much like the false prosecutions of Mr. Brown and Mr. Felstead. It was carried out by BLM Special Agent Dan Love, who was responsible for the false prosecution, for the raids, and then went on to fame in the raids on the Cliven Bundy family at their ranch in Nevada. The world watched as the new-styled BLM agents got to flex their new-found muscle. Dawning Camo, bullet proof vests, automatic rifles, and with hats on backwards and dark Oakley sun glasses, the BLM agents ridiculed the Bundy’s just like they had the families in Blanding a little less than five years earlier, only this time it was on national television and their foul language was recorded, revealing the true level of disdain they had for the people that they were supposed to serve.
In 2014, just a couple of weeks after Dan Love’s fiasco at the Bundy Ranch, a large group of protesters gathered in Recapture Canyon to protest the BLM’s treatment of the citizens of Blanding. The event had been planned and advertised for months in advance, but just happened to take place on the heels of the BLM’s embarrassment in Nevada. Despite the BLM having been informed by the protest organizers, and despite the BLM giving their approval of the protest, and despite the protestors staying on the county road – D5314 (shown on the map) – the BLM, goaded by the same handful of environmentalist accusers that promote their progressive narrative of “shifting attitudes”, decided to press charges against 5 men out of the more than 500 people who participated in the protest.
In court, the U.S. Attorneys put on a show stopper performance. They claimed that the only road in Recapture Canyon was either illegally constructed in 2005 or was granted by the BLM as a Title V maintenance road. Neither is factual. The Title V Pipeline Right Of Way stated that the only road that the San Juan County Water Conservancy District could use to access their pipeline was the County road. This did not stop prosecutors from charging the five defendants with trespass and conspiracy to trespass. The State Director of the BLM, Juan Palma testified that he had not given permission for the protestors to hold their activity in Recapture, but when presented with a recorded phone call where he did more than give permission, he applauded the activity calling it a “wonderful celebration” and to “ride or walk down into the canyon” (on the county road) and that no one was going to be arrested or anything of the sort; when the defense attorneys began to ask about the phone call he quickly changed his tune. Fortunately for BLM State Director Juan Palma, he had an undisclosed ally in Robert Shelby, the federal judge presiding over the case. Mr. Shelby quickly dismissed the jury and then ordered the recorded phone call stricken from the record. (Only a few weeks later, this same Judge Shelby disclosed, in a separate trial, that he was not only close friends with Stephen Bloch, the lead Council for Southern Utah Wilderness Alliance (SUWA) who had been the loudest and most caustic voice in making the false accusations that led to the series of vexatious raids and false prosecutions, but he was also a former law partner with Stephen Bloch’s wife, and that his kids were the same ages as the Bloch children, and that they liked to vacation together, and that the went to dinner “not infrequently.”
Recapture had gone from being a symbol of conflict in the west to being a symbol of corruption in the BLM and the so-called Department of Justice.
As is always the case with people in power, rather than admit to their deceit they set out to destroy those who dare to point out their collusion and corruption. The same has happened with Recapture and with the raids, and with the prosecution of Mr. Brown and Mr. Felstead. The same thing happened with Cliven Bundy as well, but he stayed the course and Judge Navarro was forced, after two years of denial, to acknowledge the corruption, and the patterns of corruption, that defines the BLM and their partners in the Justice Department.
Now, five years after the May 10, 2014 protest in Recapture. The BLM admits, behind closed doors of course, that they do not have a Title V Road in Recapture Canyon. They admit that they had conflated their pipeline right of way for the county road, inappropriately asserting jurisdiction over the county road. They, and the U.S. Attorney’s office admit that those they convicted for trespass and conspiracy did not trespass or conspire. They were forced to drop their claim of damages to archeological sites, when respected archaeologists called their claims of damages not only ludicrous, but spurious and dishonest.
So here we are at a crossroads in the West. There are few people who do not enjoy the vast expanse of public lands. Being able to hunt, trap, hike, drive, and recreate without fear of trespassing on someone’s private property has been a part of the fabric of the West. Sadly, the BLM has sacrificed that quiet enjoyment on the alter [sic] of environmentalism.
Article I Section 8, clause 17 of the constitution delegates to the federal government “exclusive jurisdiction in all cases whatsoever” over an area within the states, “not exceeding ten miles square,” for the “seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings.”
Public attitudes may have shifted, but the fountain from which just governments derive their power has not shifted. At all levels and throughout all government agencies in America, power is still derived from the people. And, until it has been repealed, the Constitution will continue to stand as the paramount Law of the nation.
Recapture Canyon is a pleasant little canyon that sits next to the pleasant little town of Blanding. Attitudes may shift, just like the creek that has flowed through Recapture for thousands of years, but the canyon itself seems to flourish despite the conflict that surrounds it. Maybe it is symbolic of constancy amid sifting attitudes. I predict that it, along with the rest of Southern Utah, will soon be symbolic of the beauty that can and should exist when governments obey the law rather than pervert it.
Phil Lyman is a member of the Utah State House, representing several counties across southern Utah. He was formerly a commissioner in San Juan County.