March 21, 2023
Article by Algernon D’Ammassa, Deming Headlight
Until recently, Jessica Griffin of Hillsboro hiked the Ladrone Gulch Trail, a rugged upward climb in the Black Range, about a once a week — sometimes alone, sometimes with her family.
“There’s a waterfall above the trailhead right there, about like half a mile, and the kids would all go swimming in the hole below the waterfall,” she said. “We’d go collect wild mushrooms and just do foresty things. Sometimes we would take bicycles, and the kids would ride back into Kingston down the forest road as we drove out.”
The trailhead is about three miles up Forest Road 40E, an unmaintained road that begins after the paved main road running through the tiny community of Kingston ends. It winds through four parcels of private land on its way to the forest boundary and a parking area near the trailhead. A signpost at the start of the road reads: “Private property. Please stay on roadway for next mile. Forest Road 40E open to public.”
In February, however, visitors seeking access to the Gila National Forest via the Ladrone trail encountered a locked gate where the forest road cuts through a parcel of land purchased last year by Mark Bennett.
The gate closes access to thousands of acres of the Gila National Forest from the Aldo Leopold Wilderness boundary going up Middle Percha Creek, including access to the Ladrone trailhead.
The move rankled frequent visitors from the region, who have protested and placed signs near the gate. Some have even spoken of establishing a walking trail into the forest through the waterway. Bennett said someone cut and stole his lock and drove a vehicle onto his property last month. The lock has since been replaced, and joined by a trail camera.
Last Thursday, the Forest Service’s Black Range District held a public meeting at the Geronimo Springs Museum in Truth or Consequences after being flooded with calls and emails from area residents requesting action to open the roadway.
Griffin, who disclosed that she is a seasonal Forest Service employee but does not speak for the agency, said she was hopeful dialogue could point to a solution without involving courts or hostile confrontations.
“Is his goal to prevent access to the forest and essentially close off public lands and treat it as his own? Because it’s sort of what’s happening,” she said. “But maybe he has had some experiences that have made him think that people aren’t being respectful of his private property there along the forest road; or maybe there’s some other need that’s not being met, and we could resolve that in some way that still leaves access open.”
The community has weathered two large wildfires in the past decade. The 2013 Silver Fire did extensive damage to the trail, cutting off its route to Hillsboro Peak. The Forest Service had completed a formal plan to restore the trail, including an environmental review and public comment. This was followed by last year’s Black Fire, the second-largest wildfire in New Mexico history, burning over 325,000 acres.
Forcing access would likely require a lengthy and expensive legal battle. Both the Forest Service and Sierra County say no documented easement exists. A prescriptive easement, which would allow the public to use the passage through Bennett’s property to reach public land based on historic use, would require a court ruling.
At Thursday’s meeting, Gila National Forest Supervisor Camille Howes said the agency had not yet decided whether to pursue a prescriptive easement claim and was still gathering information and considering its legal options.
“If the Office of General Counsel believes we have legal status in this, it is not my intention to lay down as a doormat to forfeit any square inch of public land,” she assured a room where over 30 people had gathered, the majority of whom were there to discuss the road.
“The Forest Service does not have a right of way across our private property,” Bennett wrote to the Headlight. “We were informed of that fact by Michael Hutchins, Black Range District Ranger.”
Hutchins retired at the end of November and his successor has not yet been announced. Last week, an agency spokesperson said a candidate had been selected but was still going through the hiring process.
Hutchins, who retired at the end of November, told the Headlight the two had discussed Bennett’s plans to put up a gate across Forest Road 40E to close off his property. Those conversations took place in the process of negotiating a special use permit pertaining to roadways winding through century-old mining claims near the national forest.
“I told him he could gate that, but we as an agency had an interest in that road,” Hutchins recalled, adding that he told Bennett the Forest Service might go to court if he locked the gate.
Although it had been closed off for four years due to damage from the 2013 Silver Fire, Hutchins said the road reopened in 2017 and occasional maintenance had been undertaken, as well as a formal process to finalize restoration work on the Ladrone trail, demonstrating a substantive interest in maintaining public access.
Hutchins argued there is a legal case for a prescriptive easement. “On paper, we can show that while we don’t have an easement across that property or a right-of-way agreement, we have historically maintained access and want future access.”
Max Yeh, a Hillsboro resident who has been researching the history of mining claims and potential solutions since the road has been locked, suggested at the meeting that the Forest Service might explore options such as negotiating a right-of-way with Bennett. He also pointed to the mining records themselves for potential evidence of a federal interest in use of the road predating even the Gila’s wilderness designation in 1924.
Steve Morgan, a Kingston resident who portrays naturalist Aldo Leopold in live historical performances, said he knows of at least two other local gates at entryways to the forest and suspects there are more in the Black Range as well as public lands in other parts of the state. Morgan argued that the danger of private landowners effectively “landlocking the public lands” required the federal government to set an example.
“If the Forest Service doesn’t do anything, if we just let him have his way, there’s going to be locks clicking around the forest,” he said.
Maribeth Pecotte from the agency’s public affairs office said the Forest Service does not have an inventory of forest roads with gates present, locked or not, on private property.
Yeh said the Ladrone trail is unique for its beauty, access to one part of the Gila and the route it provided, prior to the Silver Fire, up to Hillsboro Peak; however, he also said the extent to which Bennett’s gate closes off the forest is debatable. As Forest Service personnel gently suggested at the meeting, public access might become more limited and require longer and more strenuous hiking, perhaps making it less equitable — but it would still be access.
“If you consider this national forest as a single unit, as a piece of land, it’s got access all over the place,” he said in an interview. “It runs along Highway 152 going toward Silver City! You’re not going to be able to say that they landlocked us because of this gate. But this is the one of the major ways into the Aldo Leopold Wilderness.”
Eminent domain was also suggested at the meeting as a means of claiming the roadway on the public’s behalf and compensating the property owner appropriately. Sierra County Commissioner Jim Paxon, a former district ranger who attended the meeting, threw cold water on that prospect.
As an example, he cited the closure of four roads and, effectively, Corduroy Canyon in Catron County by ranch owners in 1991. Paxon said despite records dating back to 1892 establishing access through stage and postal route maps, the Forest Service’s counsel did not see a clearcut case for eminent domain. Paxon said the closure included culverts the agency had installed just three months before the fences went up.
“We lost that as a route to about 60,000 acres of public land,” Paxon summed up. “This isn’t a precedent; it’s happening westwide.”
What is changing, Paxon suggested, are attitudes about public access and relationships between property owners and government. In Sierra County, as across much of the west, hikers and hunters used historic mining and logging routes to cross privately held land into state trust and federal lands, and in earlier times landowners made informal arrangements allowing access without deeded and recorded easements.
“We’re a small county and we don’t have the budget to purchase these right-of-ways,” Paxon said. “This was done westwide since the turn of the 19th century because we were good neighbors. We maintained the roads and the ranchers loved it.” Over time, he argued, a generation of landowners “who weren’t of that original mindset” were exercising a lawful right to deny access.
Paxon also noted that he was not acquainted with Bennett or his reasons for closing the road.
Bennett, for his part, said the gate would remain locked unless a judge orders otherwise.
“If anyone thinks they have a right to trespass on our private property and that we are depriving them of said right, they should file a lawsuit in a proper court claiming such,” Bennett wrote. “What individuals should not do is take the law into their own hands and commit criminal acts by cutting and stealing our chain, stealing our lock, and stealing our ‘Private Property/No Trespassing’ sign, as one or more individuals did on the evening of February 19 or the morning of February 20 and driving their vehicle onto our private property.”
Bennett said a sign on his gate had been defaced as well.
“Everything we do is legal and lawful,” he wrote. “The so-called protestors are criminals.”
Algernon D’Ammassa can be reached at firstname.lastname@example.org.