What a deal

Spring has finally arrived. Seems like it was winter, winter, winter and then it was not. The mornings are still chilly at times, but the fruit trees are budding, native grama grass starting to emerge and the first spring flowers are bursting with beauty. The Broad-tailed Hummingbirds are zipping about the yard. This has been quite a boom season already for the little pointed beaks with extreme attitude – the Pine Siskins. For those of us who closely watch the seasons come and go, the reemergence of new green foliage and splashes of wildflower color always put an extra bounce in the urge to be out working in the garden or hiking along a creek looking for migrating warblers. Spring is such an exuberant time, busy with birds a courting and nest building and over-wintered eggs yielding hungry caterpillars who will soon become butterflies and moths.

It is a special time of year, this renewing of life, this spring fling of nature. But since February 18, when Mark and Ruth Bennett installed and locked a gate west of Kingston across Forest Road 40E, it has been a challenge to focus on and embrace the beauty and joy of life in our little mountain town. That gate severed the public and Forest Service access to the upper canyon of the Middle Percha Creek and the Aldo Leopold Wilderness. An access which has been a way of life around here for more than a hundred years.

Our understanding is that the Bennetts have acquired around 500 acres of very rugged mining claims which wrap the north and west sides of Kingston. Most of that land is wild and beautiful and should be a joy to explore. Aldo Leopold spoke of community versus commodity. A community is a blend of life, an intertwining of reliance and respect. Commodity is about value. Leopold said, “The last word in ignorance is that of a man who says of a plant or animal, what good is it?” These wild lands are a blending of soils, waters, plants, and animals. Our laws allow humans to say, “This is mine. I bought it.” But that person does not have the right to deny to others what he does not own. The public lands that now lie behind that locked gate are not his or hers to solely enjoy.

The mining claim that Road 40E passes through is roughly 0.4 miles long. Middle Percha Creek also flows alongside Road 40E through this stretch. There are no existing buildings nor access other by foot to any other part of his property. So legal possession of a 0.4 mile stretch of 140-year-old roadway allows the Bennetts sole access to the steep canyons which make up these National Forest lands. Even the Forest Service is denied access to those lands now, those magical lands.

To the casual hiker, Middle Percha Canyon offered perennial waters to sooth away the hot summer swelter. Local horse owners rode their horses up the canyon as one of the few accessible local riding trails. The road offered a pleasurable hike for people not able to tackle mountain slopes and rugged canyons anymore. It offered joyous wonder to children splashing in the cool pools or sitting next to a talkative three-foot-high waterfall in the riparian shade any time of year. Sometimes the stream wore icicles in an ever-changing array. At other times the streambanks were adorned with Yellow Monkeyflower and often those pleasant moments were accompanied by the Canyon Tree Frog choir with occasional solos.

This is a special place. It has its own magical qualities. Even when one visits a National Park and is wowed by the splendor, most of that experience is taken up with the smaller spaces much like our Middle Percha Creek. When the canyon lands are viewed from Highway 152, the western vista is that of many National Parks. It is why we have respected wild lands and set them aside out of respect for their wildness and all that that encompasses. Now we have lost a good portion of our local national park.

Another aspect of this situation is financial. Businesses who for years have relied on access to the National Forests and Wilderness Areas are now without those public lands for use. Many of us bought our properties because of the proximity to the National Forest and Wilderness areas. With the loss of access there will be a devaluation to our properties and monetary loss to local businesses. No one wants to trespass and cause damage to the private properties. If there are real concerns with security and property damage, we wish the landowners would work with their community to resolve those issues. We just want access to the public lands.

In September of 2022, the New Mexico Supreme Court handed down the Adobe Whitewater Club vs the New Mexico State Game Commission decision. It says that the public has the right to walk or wade in the waters crossing private property. Sierra County Sheriff Joshua Baker has said he supports that right 100%, as long as the person stays within the creek waters.

Currently, there are several organizations pushing to have that court decision refined with clearer meaning. There are conflicting portions which do need clarification in order for the sheriff and the public to be consistent in following the law. The decision also informs the landowner of the legal rights the public has without trespass.

The we I refer to in this article are several members of our local community who are very concerned with the loss of access for Kingston and for the general public. One point that has become quite obvious is that this is NOT an isolated incident. I have been receiving emails from all over the United States saying we are not alone in this. Stories from Montana, Colorado, Idaho, Arizona, North Carolina, Texas, and other states are repeating the story. There has been an assumed public right-of-way for years and then with a click, it has disappeared. The same click, click, click has been heard for decades but the sound is becoming a troublesome roar.

We are currently working with several organizations who are very concerned with this nationwide loss of access to public lands as well. The New Mexico Wildlife Federation and the Backcountry Hunters and Anglers were two of the parties on the winning side of the New Mexico Supreme Court public waters decision. WildEarth Guardians and New Mexico Senator Martin Heinrich’s office are also concerned.

In the past, federal agencies worked more on a “handshake” arrangement with private property landowners. They maintained the roads and other infrastructure in return for right-of-way. Now there is a growing number of landowners who are saying “no thanks” to being part of their communities and are denying right-of-way access.

Currently, the US Forest Service is still researching all options to resolve this matter including a legal Prescriptive Easement. But, as of today, with their recent relatively inexpensive purchase of a cluster of old mining claims, one of which happens to have Forest Road 40E passing through it, the Bennetts have private access to thousands of acres of National Forest and Wilderness, their own private playground.

WHAT A DEAL!