A closed gate, a lawsuit and the First Amendment

Couple faces trial after closing cattle gate on public land in Utah

After Mark Franklin and Rose Chilocoat were charged with multiple felonies following an incident on public land, conservation groups worry it will set a dangerous precedent.

One thing is undisputed: On April 1, 2017, Mark Franklin closed a corral gate on state trust lands between the small towns of Bluff and Mexican Hat, in southeastern Utah. Public lands in the area are specifically contentious, as its on the edges of Bears Ears National Monument, which has been used as a political volleyball for years.

After the gate-closing incident, San Juan County prosecutors charged Franklin, along with his wife, Rose Chilcoat, with multiple felonies including “attempted wanton destruction of livestock,” alleging the couple were intentionally trying to prevent a rancher’s cattle from reaching a critical water source. Both sides in the case, however, also acknowledge there was a 10-foot section of downed fence nearby that allowed the cows to move freely into the corral. According to testimony, Franklin said he though he was helping out the rancher by closing the gate. 

In November 2017, a judge in the case ordered the couple to stand trial for the charges, which if upheld, carry a sentence of 15 years in prison, says the couple’s lawyer Paul Cassell. National and local conservation and environmental organizations fear the charges and impending trial could set a dangerous precedent for governments to arrest and charge private citizens and environmentalists for monitoring public lands. 

Defending the charges, prosecutors cited Chilcoat’s history and involvement with the conservation group Great Old Broads for Wilderness as proof of her husband’s felonious intent. According to court documents, they argue it’s “a reasonable inference that Defendant Chilcoat’s public beliefs against livestock grazing on the public lands could have been a contributing factor in the Defendant’s actions with the gate.”

“We are women with a lot of heart and there is never going to be any desire to harm animals in any way and that implication is just outrageous,” says Shelley Silbert, executive director of Great Old Broads. “It’s an implication that if you’re part of an environmental group then you may have criminal intent, which is a very dangerous accusation and a very dangerous implication for conservation groups or civil rights groups or any organization [that is] working to speak out against abuses of the system or illegal activity.”

The Durango-based organization is made up of 40 or so grassroots chapters working on public land conservation and education efforts around the country. During her time at the organization, Chilcoat worked extensively in San Juan County, often drawing the ire of politicians in the area.

“Prosecutors have argued that since Rose is a prominent member of an environmental organization, that provides some sort of motive for the two of them to want to kill cattle,” Cassell says.

Not only is the claim far-fetched, Cassell says, but it could set a precedent to prosecute other conservationists working to protect public lands.

“If that becomes the basis for proving someone has criminal intent, then that places a lot of people in jeopardy of criminal prosecution,” Cassell says. “You could easily see in other jurisdictions the government trying to say, ‘Well, you’re a member of a particular organization with a particular viewpoint and so that means you obviously have criminal intent.’”

Fifteen environmental organizations, including the Sierra Club, Western Watershed Project, Wildearth Guardians and the Center for Biological Diversity among others, filed court documents in support of Chilcoat and Franklin, asserting the right to freedom of speech.

“Any time a professional environmentalist is targeted for malicious prosecution by a corrupt county government, it has a chilling effect on the willingness of conservationists to speak out about environmental problems on public lands,” says Erik Molvar, with Western Watersheds Project (WWP). The organization is known for water testing on public lands throughout the West and has faced similar lawsuits from ranchers.

Recently, WWP challenged Wyoming data trespassing legislation that required permission to access any land, public or private, and collect data, with the threat of a $5,000 fine and inability to use data collected illegally in government records. In 2017, the organization appealed to the 10th District Court and won.

“Frankly federal agencies are woefully understaffed and have a very difficult time getting out onto the public lands to see what’s going on, on the ground,” Molvar says. “And so it’s essential for the public to be able to go out and document violations of the law, which the agencies would otherwise never know about.”

Currently, the trial is on hold pending a Court of Appeals review of the case as defense attorneys attempt to get the charges dropped based on lack of evidence, and remove the lead prosecutor of the case over conflict of interests due to his political ties. Where the case goes from here is anyone’s guess. The fact that it has already gotten this far has caused conservationists to question the impact it will have for their future work on public lands.

As Molvar puts it: “It’s basically sending a message that if you’re out there in the field, doing environmental work on public lands, you could be arrested for some trumped up charge just because you’re an environmentalist trying to make the world a better place.”

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