“Defendant (the Bennetts) shall not obstruct any access to the road for the public or shall be subject to public nuisance claims,” the judge wrote.
Noting there are quail in the area, the judge wrote, “Hunters are unable to access the area due to the road being blocked.”
Although the public has used the road for decades, the Bennets put a locked gate and no-trespassing signs on the road after they acquired in 2022 a small parcel of land that the road crosses.
The NMWF and the Percha Creek Association filed a lawsuit last year asserting that the public had established an easement over the roadway through decades of public use.
It fell to the NMWF and the association to act after the U.S. Forest Service refused to act to reopen the road after the Bennetts closed it.
“This is a tremendous victory for all New Mexicans,” said Jesse Deubel, executive director of the New Mexico Wildlife Federation.
“Across the West, our public lands are under assault from landowners who seek to lock the public out,” Deubel said. “In this case, the New Mexico Wildlife Federation had to join with local residents to stand up for the public’s rights when the Forest Service itself refused to act. The public deserves better.”
Deubel credited lawyers Gene Gallegos of Santa Fe and David Baake of Las Cruces for their work to reopen the road. “Gene and David did great work, and anyone in New Mexico who’s thinking of trying to lock the public out of public lands should pay close attention to this case,” he said.
Gallegos said he welcomes the judge’s ruling. “I commend the court on doing the hard work of reviewing the entire record in order to arrive at a reversal of the prior ruling and to come to a just result,” he said.
Baake said he is thrilled with the judge’s decision, which he said will restore public access to a beautiful stretch of the Aldo Leopold Wilderness.
“Our public lands belong to all of us, but we can’t take them for granted,” Baake said. “Our lands are under constant threat from private landowners, industrial development, and misguided government agencies that place politics over people. The victory in this case shows what a passionate group of citizens can do to protect New Mexico’s special places for future generations to enjoy.”
The road runs from 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, which heads into the Black Range and the Aldo Leopold Wilderness.
Murdock-Poff held a hearing last December at which many area residents testified they had used the road to reach the wilderness for decades.
After last year’s hearing, Murdock-Poff entered an order denying the public easement claim. The NMWF and the Percha Creek Association appealed that decision, but the NM Court of Appeals ruled that the judge hadn’t yet entered a final order in the case so the appeal was premature.
Murdock-Poff’s new order states that her previous ruling was in error. She ruled that a 20-foot wide public easement exists that follows the same route that the road has followed since 1950 through the Bennett’s property to the trailhead.
The road has been delineated on U.S. Forest Service maps as Forest Road 40E for decades. The judge’s order notes that the Forest Service had refused to enter as a party to the lawsuit.
Local resident Nichole Trushell, a member of the Percha Creek Association, said the trail into the wilderness that starts at the end of Road 40E has washed out. She said volunteers were in the process of reconstructing it at the time of the road closure. She said local residents will ask the U.S. Forest Service to proceed with the trail reconstruction, but said there’s currently no usable trail into the wilderness there.
A great victory for Sierra County and the rest of NM
Is there any way we can get this ruling to apply to the Monticello box? The road thru the box had been there longer than the Forest Service road. I recognize it’s not quite the same situation since you can get to both ends of the closed area and the county governments did agree to abandon the road but you can’t access the warm spring as before. I remember donating to that cause but I guess it never went anywhere. Just hoping!!
This is not a valid ruling as many roads through private property are and have had the route changed at the expense of the USFS. Case in point is the Royal John road that forced the USFS to first build a trail around the private property and then build a road around the property. Judges and the USFS can’t be allowed to pick and choose???
As Mr. Mullenax mentions above, all cases are not the same. Every judgment is specific to the detailed facts of the particular case. Any ruling is the application of the general law to that case. A ruling may or may not set precedence in interpreting the applicability of the general law.
This decision sets no precedence being the application of the long-held law of prescriptive taking (like squatters’ rights) to the fact that this road has been used by the public for so many years, it satisfies the prescriptive law for the taking of private property from owners who have not protected their property rights.
Nor is this case — however it was argued in court — a conflict between private property rights and public rights. In the history of this country, prescriptive taking has been the backbone and source for the creation of private property. How else do we understand American land ownership from Columbus on except through incremental takings, large and small? Prescriptive taking is behind all those cliche sayings like “use it or lose it” or “possession is nine tenths of the law”?