Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 1

Case No. 16-4007

_______________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee
-vPHILLIP KAY LYMAN,
Defendant-Appellant.
_____________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CASE NO. 2:14-CR-00470-DN-1
THE HONORABLE DAVID NUFFER, DISTRICT JUDGE
_____________________________________________
BRIEF OF AMICI CURIAE BEAVER, BOX ELDER, CARBON,
DAGGETT, DUCHESNE, GARFIELD, IRON, KANE, MILLARD, PIUTE,
RICH, SAN JUAN, SEVIER, TOOELE, UTAH, WASHINGTON, WAYNE,
AND WEBER COUNTIES, UTAH IN SUPPORT OF REVERSAL AND IN
SUPPPORT OF DEFENDANT-APPELLANT
PHILLIP KAY LYMAN
__________________________________________________________________
J. Mark Ward
5397 S. Vine Street
Murray, UT 84107
(801) 783-7643
wardjmark@gmail.com
Attorney for Amici Curiae Counties

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 2

TABLE OF CONTENTS
TABLE OF AUTHORITIES....................................................................................iv
IDENITY OF THE AMICI CURIAE, THEIR
INTEREST IN THE CASE, AND THE
SOURCE OF THEIR AUTHORITY TO FILE.......................................................vi
FED. R. APP. P. 29(c)(5)
STATEMENT........................................................................................................viii
ARGUMENT.............................................................................................................1
I.

THE DISTRICT COURT DISREGARDED THE

THE JUDICIAL DISQUALIFICATION TEST
OF 28 U.S.C. 455(a) UNTIL AFTER
DEFENDANT WAS CONVICTED. A
NEW TRIAL IS THE ONLY ADEQUATE
REMEDY TO RECTIFY THIS......................................................................1

II.

THE DISTRICT COURT ERRED IN

ORDERING DEFENDANT TO PAY
RESTITUTION FOR DAMAGE ASSESSMENT
FEES AND DAMAGES CAUSED BY
RIDERS OUT OF HIS CONTROL WHO
RODE BEYOND HIS PLANNED
TURNAROUND POINT................................................................................5

III.

THE DISTRICT COURT ERRED IN DENYING

DEFENDANT'S MOTION FOR NEW TRIAL
BASED ON PLAINTIFF'S SUPPRESSION OF
ITS OWN DOCUMENTS, NAMELY BLM
MAPS THAT THROW DOUBT ON THE
TRESPASS CHARGES..................................................................................6

ii

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 3

IV.

THE STATE BLM DIRECTOR'S

MAY 1, 2014 STATEMENT TO
DEFENDANT COULD REASONABLY
BE CONSTRUED AS CONSENT TO
STAGE HIS PLANNED MAY 10TH
PROTEST RIDE. THIS CASTS
REASONABLE DOUBT ON
WHETHER DEFENDANT OPERATED
AN OFF-ROAD VEHICLE IN AN
AREA CLOSED TO SUCH VEHICLES
KNOWINGLY AND WILLFULLY
FOR PURPOSES OF 43 C.F.R. 8341.1.......................................................9

V.

THE DISTRICT COURT ERRONEOUSLY

DISREGARDED R.S. 2477 AS A VIABLE
DEFENSE TO THE TRESPASS CLAIM....................................................10

CONCLUSION ......................................................................................................11
STATEMENT REGARDING ORAL ARGUMENT.............................................12
CERTIFICATE OF COMPLIANCE.......................................................................13
CERTIFICATE OF DIGITAL SUBMISSION ......................................................14
CERTIFICATE OF SERVICE ...............................................................................15

iii

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 4

TABLE OF AUTHORITIES
CASES
Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 858 n. 7 (1988).....................................................................2, 4
Sandstrom v. Montana,
442 U.S. 510, 512, 520 (1979).................................................................................1
Mathis v. Huff & Puff Trucking, Inc.,
787 F.3d 1297, 1310 (10th Cir. 2015).............................................................2
United States v. Cooley,
1 F.3d 985, 997 (10th Cir. 1993).................................................................2, 4
United States v. Jessop,
2010 WL 5395091 (10th Cir. 2010) ........................................................vi, 10
United States v. Russell,
963 F.2d 1320, 1322 (10th Cir. 1992).............................................................5
United States v. Speakman,
594 F.3d 1165, 1170-1172..............................................................................5
United States v. Quarrell,
310 F.3d 664, 680 (10th Cir. 2002).................................................................5
STATUTES, REGULATIONS, AND RULES
Revised Statute or R.S. 2477......................................................................ii, vi, 8, 10
18 U.S.C. 3663A(a)(2)...........................................................................................5
28 U.S.C. 455(a) .....................................................................................i, 1, 2, 3, 4
43 U.S.C. 1701.......................................................................................................9
43 U.S.C. 1733.......................................................................................................9
iv

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 5

43 U.S.C. 1733(a)...................................................................................................1
43 C.F.R. 8340.0-5(h)...........................................................................................6
43 C.F.R. 8341.1............................................................................................ii, 6, 9
43 C.F.R. 8341.1(c)...............................................................................................1, 6
Fed. R. App. P. 29(a)................................................................................................vi
Fed. R. App. P. 29(a)................................................................................................vi
Fed. R. App. P. 29(c)(5).......................................................................................i, vii
Fed. R. App. P. 32(a)(5) .........................................................................................13
Fed. R. App. P. 32(a)(6)..........................................................................................13
Fed. R. App. P. 32(a)(7)(B).....................................................................................13
Fed. R. App. P. 32(a)(7(B)(iii)................................................................................13
Fed. R. App. P. 32(a)(7)(C).....................................................................................13
MISCELLANEOUS
Model Rules of Professional Conduct R. 3.1...........................................................10

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 6

IDENTITY OF AMICI CURIAE, THEIR INTEREST IN THE CASE,

AND THE SOURCE OF THEIR AUTHORITY TO FILE
Amici curiae ("Eighteen Counties") are Utah political subdivisions that
maintain thousands of miles of public roads across Utah federal lands. They work
with Federal agencies frequently to solve roads, access, and other public lands
issues. Special interest lawyers frequently oppose the Counties' road interests
especially when road issues go to trial. That is why the Counties' confidence in the
Federal judiciary was shaken when the district court failed to disclose his admitted
long-time, deep personal friendship with SUWA's legal director and disqualify
himself automatically or upon request, as soon as he started to conduct voir dire of
prospective jurors to probe for any personal friendships with SUWA personnel,
when his SUWA friend attended the trial almost every day.
No County official should have to endure a road trespass trial while the
Federal Government keeps back its own exculpatory maps that show the subject
road as not closed. Nor should a County official have to be lucky enough to
discover such exculpatory material after the trial, like Defendant and his new
counsel did. The Federal Government should automatically produce those
exculpatory maps before trial. And to hear that the court still denied a new-trial
motion in the face of this breach is disturbing to say the least.

vi

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 7

Of equal concern is that the State BLM Director in a taped conversation told
Defendant go ahead and have the ride and nobody will get arrested or in trouble.
Defendant relied on the State Director's assurance. Defendant got in trouble.
The alarm is compounded to hear that Defendant must pay for
"archaeological and riparian damages" caused by the ATV rides of people over
whom Defendant had no control, who ignored Defendant's direction to ride to the
turnaround point and come back. Moreover Defendant was ordered to pay
restitution in excess of $84,000 for damage assessment fees, when actual damages
came to only about $11,800.
Finally, although Defendant Lyman's pro-se brief arguably deemphasizes on
appeal his trial counsel's urging of a R.S. 2477 defense to the trespass charge, still
the Counties are interested in the Court's deciding similar 2477 arguments pursued
by Defendant Wells in the companion appeal, particularly the need to reform
United States v. Jessop, 2010 WL 5395091 (10th Cir. 2010) to give Counties much
needed due process when a road in a trespass case remains un-adjudicated, like
most rural roads do in Utah.
The filing of this amici curiae brief is authorized under Fed. R. App. P.
29(a), because Defendant consented and Plaintiff indicated it does not object to this
filing, thereby obviating the need for a motion under Rule 29(b).

vii

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 8

STATEMENT PURSUANT TO FED. R. APP. P. 29(c)(5)

The amici curiae Counties by and through their undersigned counsel make
the following statement pursuant to Fed. R. App. P. 29(c)(5):
(A)

No party's counsel in the above-entitled action authored this brief in

whole or in part.
(B)

No party or party's counsel in the above-entitled action contributed

money that was intended to fund preparing or submitting this brief.

(C)

No person - other than the amici curiae Counties contributed money

that was intended to fund preparing or submitting this brief.

/s/ J. Mark Ward

viii

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 9

ARGUMENT
The Plaintiff failed its burden to prove beyond a reasonable doubt the three
main elements necessary to bring a conviction against Defendant Phil Lyman.
43 U.S.C. 1733(a) and 43 C.F.R. 8341.1(c).
Those elements are that the Defendant
(1) knowingly and willfully (2) operated an off-road vehicle (3) "in an area or trail
closed off-road vehicle use." All three elements must be proved beyond a
reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 512, 520 (1979). The
following points set forth the district court's more serious errors that constitute
grounds for reversal of defendant's conviction, leaving this Court to decide if an
outright acquittal or a remand for new trial is best advised. Defendant Lymans
conviction cannot stand under any sense of justice.
I.

THE DISTRICT COURT DISREGARDED THE JUDICIAL

DISQUALIFICATION TEST OF 28 U.S.C. 455(a) UNTIL AFTER
DEFENDANT WAS CONVICTED. A NEW TRIAL IS THE ONLY
ADEQUATE REMEDY TO RECTIFY THIS.
The court's attempt to justify his late disqualification (R. Vol I Pt 2. at 135-

137.) brings this to mind: There is no meaningful difference between a veiled

judicial irregularity and an eventually unveiled one. The appearance problem and
shaken public confidence do not commence only on the unveiling. They hearken
back to the start of the start of trial.

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 10

The duty under 28 U.S.C. 455(a) is mandatory and consciously designed to

prevent shaken public confidence in the judiciary: A United States judge "shall
disqualify himself [not just divulge but disqualify] in any proceeding in which his
impartiality might reasonably be questioned." The might reasonably be questioned
standard of 455(a) signaled a deliberate change from a subjective to an objective
test to shore up public confidence in the courts. Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 858 n. 7 (1988).
The court tried to tie the triggering of the objective test for disqualification
to his receipt of his SUWA friend's letter seeking to influence the court on
Defendant's sentencing. (R. Vol I Pt 2. at 136-137.) Only then, the court implied,
was there be a reason for him to recuse himself. But the test under 455(a) is not
a judge-centric test. It is not about the court wisely deciding what triggers the
public and litigants can handle about a judge/SUWA friendship in a highly
controversial case. Rather the test under 455(a) is the reasonable-member-ofthe-public-and-litigant test, if you will. Mathis v. Huff & Puff Trucking, Inc., 787
F.3d 1297, 1310 (10th Cir. 2015). The inquiry is whether they, the members of the
public reasonably harbor doubts and concerns about the judge's mere SUWA
friendship with nothing more? United States v. Cooley, 1 F.3d 985, 993 (10th Cir.
1993). The test is not: Can the judge reasonably handle that friendship until the
SUWA friend sends a letter?

The focus is on the public, not the judge.

2

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 11

So it makes no difference even if the judge thinks he can manage the conflict
or friendship. If the public is bothered, that is the end of that. The judge should
disqualify himself. In examining what plays on the fears and concerns of the
litigants, it is telling that both Plaintiff and Defendant in this case stipulated to the
voir dire question that probed the prospective jurors for the presence or absence of
a SUWA friendship. (R. Vol I Pt 2. at 136.) Both parties apparently were
concerned over where each prospective juror stood in relation to SUWA personnel,
and not whether the SUWA friend had ever tried to get in the prospective juror's
head.1 Those concerns do not somehow fall from reasonable to unreasonable when
the friendship question magnifying glass is then trained upon on the court.
The fact the court put up no apparent resistance to Defendant's post-trial
motion to disqualify leaves no doubt he conceded the objective applicability of 28
U.S.C. 455(a) to his situation. But it was too little too late. As the objective test
was met after Defendant's conviction, so too it was met back at the voir dire phase
of trial, when the court screened prospective jurors for SUWA personal friendships

The Court tried to make a point of the fact that defendant requested the
SUWA/friendship voir dire question before both parties stipulated to it and the
court approved it. (ROA. V I Pt 2. at 136.) That should not matter. 28 U.S.C.
455(a) is designed to serve the litigants as well as the public. Is the court's point
code for, Well it's just the Defendant who's worried, so it does not rise to the level
of an objectively reasonable concern. Let's hope not. Interesting subtle contours
pervade this whole inquiry. A judge's safe bet is to just assume that if he fits the
bill on a voir dire question designed to explore commonly accepted metrics of bias
1

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 12

while sitting on his own un-divulged SUWA friendship embodied by the very
SUWA friend who attended the trial almost every day. Their secret persisted even
as the court grilled perspective jurors for similar secrets. It is hard to write fiction
this spectacular. But alas it is a faith shaking reality for Defendant and the
Counties.2
The only acceptable remedy in this statewide high profile case is to vacate
Defendant's conviction and remand the matter back for a new trial and an
objectively independent judge. Cooley, 1 F.3d at 997 (10th Cir. 1993). For the
sake of the public's confidence in the institution of the United States District Court
for the District of Utah, the Counties respectfully call on the United States
Attorney for the District of Utah to concur in this remedy and stipulate to vacate
the convictions and hold a new trial, before this Court has to order it. The press
and public are watching this high profile case carefully. Vacate the Defendant's
conviction and retry the case. It is a small cost to pay to promote confidence.
II.

THE DISTRICT COURT ERRED IN ORDERING DEFENDANT TO

PAY RESTITUTION FOR DAMAGE ASSESSMENT FEES AND

In fact, a judge-SUWA friendship is likely of greater concern to the

reasonable person for purposes of 28 U.S.C. 455(a) than a mere juror-SUWA
friendship is. To the public and lay litigants, a single judge reasonably appears
more able to sway a jury trial outcome than any one juror might. Some with inside
knowledge of court workings may choose to dispute that perception. But that does
not make the perception any less reasonable to the outside lay person. 28 U.S.C.
455(a) is designed to protect the courts' image and the lay public's confidence in
the courts plain and simple. Liljeberg, 486 U.S. at 858 n. 7.

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 13

DAMAGES CAUSED BY RIDERS OUT OF HIS CONTROL WHO

RODE BEYOND HIS PLANNED TURNAROUND POINT.
A.

Defendant should not be ordered to pay restitution for any damages

caused by those who ignored Defendant's plans and exhortations and kept riding
beyond his planned and executed turnaround point. 18 U.S.C. 3663A(a)(2) (limit
restitution only to harm "directly and proximately" resulting from the defendant's
offense); United States v. Speakman, 594 F.3d 1165, 1170-1172 (10th Cir. 2010)
(intervening cause defeats notion of direct and proximate causation in restitution
cases unless the "intervening cause was directly related to the offense conduct");
United States v. Russell, 963 F.2d 1320, 1322 (10th Cir. 1992) ("[A] conspiracy,
once instituted, continues to exist until it is abandoned, succeeds, or is otherwise
terminated by some affirmative act, such as withdrawal by the defendant.").
On the vacating of Defendant's conviction and remand for new trial pursuant
to Point I above, this Court should instruct the district court that in the event of
another conviction do not order restitution for any damage caused by riders who
rode beyond Defendant's planned turn around point, who had their own agenda and
who ignored Defendant's plans and ride parameters.
B.

The Plaintiff in true Governmental fashion spent about $84,000 to try

to prove up about $11,800 in actual damages. They persuaded the district court to
lump the $84,000 into the restitution order. The court erred in doing so. United
States v. Quarrell, 310 F.3d 664, 680 (10th Cir. 2002). The district court in the
5

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 14

event of another conviction on new trial, should be instructed not to order

restitution for Plaintiff's damage assessment fees. The restitution order should not
exceed $11,800 between Defendants Lyman and Wells for actual damages.
III.

THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S

MOTION FOR NEW TRIAL BASED ON PLAINTIFF'S
SUPPRESSION OF ITS OWN DOCUMENTS, NAMELY BLM MAPS
THAT THROW DOUBT ON THE TRESPASS CHARGES
BLM documents that were newly discovered by plaintiff's new counsel after

the trial create a reasonable doubt whether the Plaintiff's 2007 closure order
extends to the subject road segment where Defendant staged his protest ride the
"subject road segment." The court instructed the jury not to consider if the BLM
closed Recapture Canyon Road lawfully. But it is not enough merely to say that a
travel closure executed lawfully. The closure even if done legally must actually
extend to and include the subject road segment. 43 C.F.R. 8340.0-5(h), 8341.1
and 8341.1(c).
This is not just an academic point. The Plaintiff suppressed, kept back and
failed to disclose the following documents before or at trial, the unavailability of
which prejudiced the Defendant at trial because each are enough to cast serious
doubt on whether temporary closure order really extends to the relevant road
segment:
-

A 1981 BLM dam and reservoir right-of-way grant and addenda in the

vicinity of Recapture Canyon.

6

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 15

A 1979 BLM map and topographic addendum still in effect showing a

road, marked in red and labeled "County Road," running through that part of
Recapture Canyon where the subject road segment also runs. (R. Vol. I Pt. 2 at 90,
92.)
-

A 1967 BLM map showing a road in virtually the same location as the

1979 map does. (R. Vol. I Pt. 2 at 202, 203.)

-

A 1975 BLM map also showing a road in virtually the same location

as the 1979 and 1967 maps do. (R. Vol. I Pt. 2 at 204, 205.)
The jury as fact finder should have been allowed to consider the BLM 1979
Map and addenda, as well as the 1981BLM right of way grant which states the
county roads in the area of the proposed project "were built per authority of
repealed R.S. 2477." (R. Vol. I Pt. 2 at 108.)
-

With these undisclosed BLM 1979 and earlier maps smoldering in an

office file far from the courtroom, Plaintiff at trial pushed the notion that a BLM
only an administrative Title V right-of-way could have possibly justified anybody's
right to travel along the subject road segment. The conditions of use under the
terms of the written Title V permit held by permitee San Juan County Water
Conservancy District, are that third parties may travel the Title V route with
consent from the permitee, but only to do pipeline maintenance.

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 16

On these terms the Plaintiff set up and knocked down a straw man: The
Defendant tried but just can't justify his ride on grounds of permission from the
Title V right-of-way permitee, because his protest ride on May 10, 2014 was not to
perform maintenance on the pipeline.
The district court's reliance that argument is erroneous for a few different
reasons: First the BLM's 1979 and earlier maps (the ones the BLM tried to
suppress) form an additional legal basis for the public's right travel of the subject
road segment unimpeded by the 2007 areas closure. Namely an R.S. 2477 that
vested decades ago. More on the R.S. 2477 defense in Point V below.
Secondly, plaintiff's Title V theory is buried by the fact that the TitleV itself
is, well, for a buried pipeline not a road way. A pipeline Title V cannot possibly
support and justify travel route depicted in the BLM 1979 map and earlier maps.
There had to be some other bases for those roads. Yet there are on other
indications in the BLM State office plats. The answer is simple: the basis for
public travel through there is R.S. 2477. The Plaintiff and trial court did a huge
disservice by shutting all inquiry into historical use to justify an RS 2477 validity.
The point is this case was tried under a hopeless cloud of confusion and
obfuscation. Couple this with the improper suppression of the important BLM
road maps by the plaintiff and there is plenty of error to go around sufficient to
reverse the convictions
8

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 17

Which brings us full circle to the main point: This Court would serve the
interest of justice and truth finding greatly by (1) reversing the district court's order
denying defendant's motion for new trial and (2) instructing the district court to
accept into evidence the once withheld BLM 1979 and earlier maps and associated
documents referenced above..
IV.

THE STATE BLM DIRECTOR'S MAY 1, 2014 STATEMENT TO

DEFENDANT COULD REASONABLY BE CONSTRUED AS
CONSENT TO STAGE HIS PLANNED MAY 10TH PROTEST RIDE.
THIS CASTS REASONABLE DOUBT ON WHETHER DEFENDANT
OPERATED AN OFF-ROAD VEHICLE IN AN AREA CLOSED TO
SUCH VEHICLES KNOWINGLY AND WILLFULLY FOR PURPOSES
OF 43 C.F.R. 8341.1
It is undisputed that in a May 1, 2014 telephone conversation, the State BLM

Director Juan Palma said to Defendant in reference to Defendant's upcoming

protest ride, "Nobody is going to get arrested and nobody is going to do all that
kind of stuff. We're not going to do that." (R. Vol. III. at 462.) And "You know,
that you can have your celebration and that you can, you know, ride or walk down
into that canyon. That would be wonderful." (R. Vol III. at 463-464.)
From this the Plaintiff has failed to prove its case beyond a reasonable doubt
that defendant violated 43 U.S.C. 1701, 43 U.S.C. 1733, and 43 C.F.R.
8341.1 by knowingly and willfully operating an off-road vehicle in an area closed
to such vehicles. That was not his state of mind. He thought he had permission

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 18

and consent from Director Palma. The Case fails on this point, and an outright
reversal and judgment of acquittal would be in order.
V.

THE DISTRICT COURT ERRONEOUSLY DISREGARDED R.S.

2477 AS A VIABLE DEFENSE TO THE TRESPASS CLAIM
Many documents discovered in this case other proceedings show a solid R.S.

2477 Right of Way interest running along the road segment where Defendant
staged his protest ride. A valid 2477 claim trumps Plaintiff's Temporary Closure
Order.
The problem under existing law is tough for a criminal trespass defendant
who wishes to assert the R.S. 2477 validity of a road as defense to a trespass
charge, unless the 2477 claim has been adjudicated and found valid. United States
v. Jessop, 2010 WL 5395091 (D. Utah Dec. 27, 2010). But such jurisprudence
works a greater offense to due process principles. Jessop applies to basically deny
due process to a criminal trespass who has evidence to show the RS 2477 validity
of the subject road. Most of the thousands of miles of roads that the Counties
maintain are as yet un-adjudicated.
Under the Model Rules of Professional Conduct R. 3.1, the Counties as
amici urge by way of "good faith argument for an extension, modification, or
reversal of existing law," that the Court taking up the issue in this case and modify
the Jessop opinion to allow consideration of R.S. 2477 validity on the subject road
segment on which Defendant staged his protest rally.
10

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 19

CONCLUSION
For these reasons, the Court should reverse the trial court judgment below,
and enter a judgment of acquittal or order a new trial as the Court may deem best
advised.
RESPECTFULLY SUBMITTED THIS 27th day of May, 2016.
/s/ J. Mark Ward
J. Mark Ward
5397 South Vine Street
Murray, Utah 84107
(801) 783-7643
wardjmark@gmail.com
Attorney for Amici Curiae Counties

11

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 20

STATEMENT REGARDING ORAL ARGUMENT

If the Court permits it pursuant to Fed. R. App. P. 29(g), amici curiae
counties desire to participate in any oral argument in this matter.

/s/ J. Mark Ward

12

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 21

CERTIFICATE OF COMPLIANCE
I certify pursuant to Fed. R. App. P. 32(a)(7)(C) that
1.

This amici curiae brief complies with the type-volume requirements

of Fed. R. App. P. 32(a)(7)(B), because it contains 4,204 words from front to

cover.
2.

This amici curiae brief complies with the typeface requirements of

Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6), because it has been prepared in proportionally spaced typeface using
Microsoft WORD Version 2011 in 14 point Times New Roman.
Dated this 27th day of May, 2016.
/s/ J. Mark Ward

13

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 22

CERTIFICATE OF DIGITAL SUBMISSION

I certify that with respect to the foregoing:
(1) all required privacy redactions have been made per 10th Circuit Rule
25.5;
(2) with the exception of those redactions, every document submitted in
digital form or scanned pdf is an exact copy of the written document filed with the
Clerk; and
(3) the digital submissions have been scanned for viruses with the most
recent version of a commercial virus scanning program (Kromtech MacKeeper
Version 3.10x, updated May 27, 2016) and according to the program, are free of
viruses.
Dated this 27th day of May, 2016.

/s/ J. Mark Ward

14

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Page: 23

CERTIFICATE OF SERVICE
I certify that on this 27th day of May 2016, I electronically filed the
foregoing Brief of Amici Curiae Counties using the Court's CM/ECF system,
which system will provide the following with notification of such filing and access
to an electronic copy:
Jared C. Bennett
Assistant United States Attorney
Attorney for Plaintiff-Appellee
185 South State Street, Suite 300
Salt Lake City, Utah 84111-1506
I certify that on this 27th day of May, 2016 I served an electronic copy of the
foregoing Brief of Amici Curiae Counties via e-mail to the following:
Phillip Kay Lyman
Defendant-Appellant pro se
email: phil@lymancpa.com
I certify that on Saturday May 28, 2016 the original and seven copies of the
foregoing Brief of Amici Curiae Counties will be placed with a commercial
delivery courier for hand delivery to the Clerk of Court for filing on Tuesday May
31, 2016 (day after Memorial Day holiday and within two business days of
electronic filing), and that printed copies will be mailed that day to Plaintiff's
attorney Bennett at the above address and Defendant Phillip Kay Lyman at the
following address:
1401 North Blue Mountain Road
Blanding, Utah 84511
15

Appellate Case: 16-4007

Document: 01019629043

Date Filed: 05/27/2016

Dated this 27th day of May, 2016.

/s/ J. Mark Ward

J. Mark Ward

16

Page: 24