By BEN NEARY
NMWF Conservation Director
The New Mexico Wildlife Federation has joined with a group of Sierra County residents in a lawsuit seeking to force local landowners to remove a newly installed gate that blocks a road to the Aldo Leopold Wilderness.
The NMWF and the Percha Creek Association have asked District Judge Shannon Murdock to grant a preliminary injunction to force removal of the gate. The judge has set a hearing on the request for Dec. 13 in Truth or Consequences.
According to the lawsuit, landowners Mark and Ruth Bennett installed a gate across Forest Road 40E in the Gila National Forest in February. The Bennetts installed the gate where the road crosses an inholding parcel of land they purchased within the forest boundary in 2022.
According to the lawsuit, the road has been publicly-used for an untold number of years and the U.S. Forest Service has maintained it for approximately 40 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.
“FR 40E provides the only means of accessing the southern portion of the Wilderness,” the lawsuit states. “Were the road not blocked, the public would continue as it has for decades to reach the Ladrone Gulch trail that takes one on foot or horseback into the Black Range portion of the Wilderness. In addition, beginning in September and continuing until the end of December 2023, but for the Defendants’ obstruction, the Wilderness would be accessible by FR 40E for Elk and Mule Deer hunters and outfitters as it has been in the past.”
The lawsuit states that by openly using the road for more than ten years, the public has established a prescriptive easement over private lands and has the right to continue to use it. The lawsuit goes on to add that If the court establishes that the public has a prescriptive easement to the road, then the Bennett’s gate is a public nuisance and it asks the court to order its removal.
The Bennetts have filed a response to the lawsuit. Their answer asserts that Road 40E never existed, or was abandoned years ago, and “the Forest Service never had any rights across the land in question except by permission.”
In the answer to the lawsuit, the Bennetts state that they installed the gate because people were trying to trespass across their land.
The Percha Creek Association and the NMWF are represented by Santa Fe lawyers Gene Gallegos and Michael J. Condon and Las Cruces lawyer David Baake. The Bennetts are represented by lawyer William L. Lutz of Las Cruces.