By BEN NEARY
NMWF Conservation Director
Residents of the town of Kingston used a road to access the Aldo Leopold Wilderness for decades without permission before landowners blocked it with a locked gate early this year, residents testified at a court hearing Dec. 13.
The New Mexico Wildlife Federation and the Percha Creek Association – a group of area residents – are pressing a lawsuit seeking to force landowners Mark and Ruth Bennett to remove the gate.
At the end of a day-long hearing in Truth or Consequences, Judge Shannon Murdock said she intends to issue a written ruling next week on the request from the NMWF and the residents for an order requiring the Bennetts to remove the gate immediately while the lawsuit proceeds.
The Percha Creek Association and the NMWF were represented by Santa Fe lawyers Gene Gallegos and Las Cruces lawyer David Baake. The Bennetts were represented by lawyer William L. Lutz of Las Cruces.
Gallegos and Baake argued that it’s clear the public has established a prescriptive easement over private lands owned by the Bennetts and others and that the public has the right to continue to use the road. In order to establish a prescriptive easement, they said the public has to have used the road openly, without asking permission from any private landowners, for more than 10 years.
The road extends westerly 2.9 miles from the end of Main Street in the town of Kingston to the entry of the Aldo Leopold Wilderness portion of the Gila National Forest. The road leads up the canyon that holds Percha Creek to a trailhead on the Ladrone Gulch Trail, that allows access into the Black Range and the Aldo Leopold Wilderness for hikers or horseback riders.
The road has long been delineated on U.S. Forest Service maps as Forest Road 40E. For years, there’s been a USFS sign at the base of the road that states, “Private Property. Please Stay on Roadway for Next 1 Mile. Forest Road 40E Open to Public.”
Association member Chuck Heard, of Twenty-Nine Palms, Calif., testified his family has been in the Kingston area since the 1920s and still owns property there. He said his fondest childhood memories center on times spent in the canyon with his brothers and other family members.
“Early 1960s, we were up there all the time,” Heard said. “That was some of the best times of my childhood, going up there with my grandfather.”
Heard said his family never asked anyone for permission to use the road. Now 69 years old, he showed a photograph of himself as a toddler standing at the end of the road in the trailhead area.
After military service, Heard said he returned to the area and worked for a time for the Forest Service in the Black Range Ranger District. He said he did road maintenance on the road for the agency. “We’d make sure the road was clear so vehicles could drive by,” he said.
Other area residents testified that they, too, had used the road for decades without ever asking for permission.
Deborah Brandt of Las Cruces, a registered nurse and professional herbalist, testified that she owns a residence in Kingston where she stays regularly. She said has used the road since 1996. She said she commonly took field trips up the road to show others the medicinal use of rare plants that grow in the canyon.
Steve Morgan, a resident of Kingston since 2007 and a retired landscape architect, said he worked with the Forest Service to address runoff issues on the road following a large forest fire in 2013.
“Since the mining days in the 1880s and 1890s, the road has been used,” Morgan said. He said he and his wife commonly walked their dog on the road without asking for permission before the Bennetts closed it.
Before the Bennetts installed their gate, it was a 15-minute walk to access the trailhead, Morgan said. He said the sides of the canyon are steep and rugged and said there’s almost no other way to access the trailhead with the road closed. He said reaching it from Kingston now would require a seven-hour trip through the mountains around the private parcels and that anyone using horses or needing handicapped access couldn’t reach it.
Jesse Deubel, executive director of the NMWF, testified that the organization represents the interests of New Mexicans including hunters and anglers in accessing and protecting public lands and wildlife.
“It’s very important to us to ensure that the public retains access to the public lands that belong to all New Mexicans,” Deubel said. The NMWF was founded by Aldo Leopold in 1914..
Under questioning of Lutz, Mark Bennett said he bought his roughly 20-acre parcel that is crossed by Forest Road 40E in 2022 and installed his gate across it early this year because he was concerned about people stealing firewood from his land and otherwise trespassing. He said the road crosses his property for less than a third of a mile.
Before installing the gate, Bennett said he put up no-trespassing signs on both sides of the road where it crossed his property, “because we were concerned with problems with people going off the road.”
Bennett testified he doesn’t live on the property where he installed the gate, but intends to build a cabin on his land in the area. He said there’s only one place on his property where he could build, but said it’s close to the road. “Obviously, we don’t want people we don’t know going by our front door twenty-four-seven,” he said.
Under questioning by Gallegos, Bennett said he has handed out keys to the gate to 12 friends.
Gallegos asked Bennett that if a family came from Socorro that wanted to go up Forest Road 40E to reach the trailhead, “They can’t go enjoy that road because they’re not your friends?”
Bennett responded that there are other roads into the national forest. He said the hypothetical family wasn’t there when he and his wife worked hard for 40 years to earn the money to buy the property. He testified that he’s a retired industrial designer, and that he worked in Texas for a subsidiary of EDS – an information technology and services company founded by Ross Perot.
Bennett said he had driven up the road before he purchased the property without asking permission from any landowners.
“The road across our property is not Forest Road 40E,” Bennett told Gallegos. “They (the Forest Service) don’t have an easement and they’re never going to have an easement.”
Gallegos asked Bennett, “You agree that by your placing of that gate, the public cannot travel that road to reach the Aldo Leopold Wilderness?”
Bennett responded, “Yes.”