[Editor's Note: The Grant County Commission work session on Sept. 6 and the regular meeting on Sept. 8, were both long meetings, so this series of articles will be numerous. Part 5 begins with a public hearing at the regular meeting. The previous articles are linked at the bottom of this article.]

By Mary Alice Murphy

The first item of business on the Grant County Commission regular meeting on Sept. 8, 2022, was a reconvening of a public hearing on the possible vacation and abandonment of a portion of Bald Knoll Road.

Grant County Planning Director Randy Hernandez was sworn in to give testimony. Since the first hearing, the BLM (Bureau of Land Management), the State Land Office and the New Mexico Department of Game and Fish have issued letters of concern about the abandonment and its potential impact on public access to public land. "Since that initial public hearing, the landowners, Mr. Bradberry and Mr. Reed have presented an alternate request to BLM, the State Land Office and the Department of Game and Fish for feedback."

Hernandez continued and said in his discussions with BLM, they had pointed out another sliver of land about 209 feet of the road that was still on public land. He noted that the county would have to give up or re-assign the right-of-way. In discussions with Mr. Bradberry that morning, Hernandez said that Bradberry had suggested moving the abandonment just past the BLM land. That would keep the county right-of-way in place. "I got feedback from the State Land Office before the latest change, and they continued to have concerns."

"With the latest change," Hernandez said, "there would be no more public land to access and the county right-of-way would remain intact."

District 5 Commissioner Harry Browne said at the last hearing, it had been suggested that the original stopping point would allow trucks and trailers to have room to turn around, but this would be beyond that spot.

Hernandez said the county would have to put up signage warning people that it was the last place to turn around and that county maintenance would end in 50 feet, for example. He said the signage would be the responsibility of the county, because technically it would still be county maintained.

District 3 Commissioner Alicia Edwards noted the signs in the county get shot up. "It might be in the county's best interest to invest in higher quality signage to resist the shooting and graffiti."

"I met with Mr. Bradberry this morning on this new suggestion, and he is in agreement with it," Hernandez said.

Browne said he had a conversation with the State Land Office, and it was not just concerned about the sliver on BLM land, but its legal counsel is in opposition to the abandonment, because the road beyond county maintenance might still provide access to public lands, because the road continues to the south toward an "enormous" block of public land. "How confident are you that it is not a public road?"

Hernandez said he wasn't sure about that, but the proposal is just for where present county maintenance would end. "It's on private property."

Browne talked about RS2477 roads. "For me that kind of road is on federal property, but I guess they can also be on private property. It will be hard for me to vote to abandon this road if we don't know if that road is public access."

Edwards said the county has documentation for "what we've been maintaining. I'm puzzled why this is coming up now. There's a gate across the road where county maintenance ended. Why are BLM and the state complaining now?"

County-contracted Attorney Ben Young of Mynatt, Martinez and Springer PC noted that he wasn't sure if the county had maintenance beyond the gate. "This road could have existed and along the way the county agreed to maintain. Maybe what the conversation should be about is about historic access. Have people used that road traditionally?"

Edwards said: "With a locked gate, I think it's not likely it was public access. Why isn't land exchange on the table that doesn't take three or five or 10 years to address the three orphan pieces of land? It seems to make more sense to make it easier for a land exchange."

Young said: "This is an action to take place now, and a land exchange can be on the table in the future."

District 1 Commissioner and Chair Chris Ponce noted that a land exchange is not a county issue.

Young agreed but said it would still require the county to abandon the right-of-way.

District 4 Commissioner Billy Billings said: "I've been out there. The locked gate has been there for years. I think what I don't like is the moving target. I think it's a good idea to abandon the road to the new point beyond the public land. I think the owners have capitulated and agreed to the new point for the abandonment.The owners need to feel secure."

Hernandez said it would be just under two miles from the existing end of county maintenance.

Young said a representative from BLM was also on the line.

Edwin Bradberry was sworn in. "After visiting with Randy today, the change is fine. I want to make it clear that we are not trying to shut down public access. If you were putting it where it is now, it would give us security. People don't read signs. There is no gate at the new spot, because the blade man wouldn't be able to turn around until farther down the road. I will carve out a spot for those who don't read signs, so no one gets hurt."

District 2 Commissioner Javier "Harvey" Salas asked: "Where is the locked gate?"

Bradberry replied that it was where the county maintenance ended. "Our property ends about half a mile before the locked gate. It's about a mile to the house before the locked gate. There are lots of roads and trails and they're all on private property. Fred McCauley put in that road to the south in about the 1970s. The roads have been there since the 1930s for access to the dirt tanks. It's all private land."

Browne said to Young: "If we plan to abandon the portion of road, it seems to be the same issue that someone could challenge that it leads to public land."

Young clarified that the county would abandon the right to maintain the road as county right-of-way. He said somebody could come along and say his family has been accessing that road for four generations through the private land. "That would be between the private landowner and the person. If they bring a lawsuit against the county, we will have records on our vacating that portion of right-of way."

Browne noted that in his mind, "if we abandon the road, it makes more sense to abandon it at the original proposal. A hiker can easily walk to that corner they want to access. I recommend abandonment at the turn around place."

Bradberry said it makes sense for him for safety reasons, "if the BLM agrees."

Edwards said in her opinion it, the access along the 209 feet is steep, so it makes sense from a safety point of view.

Young said if it's private property, the owner can put a gate where the county has the right-of-way. "If we abandon the maintenance of the right-of-way, then someone else has the opportunity to maintain it. But it doesn't ensure no scattershot lawsuits. We have evidence of the process to hopefully extricate the county from any suits."

Bill Childress, representing the BLM, was sworn in. "If the county does decide to abandon it, we have expressed our opposition to the county abandoning the road and its right-of-way. Those portions beyond the county maintenance will be reassigned to the property owner or the county is responsible for reclamation of the land. We are in opposition to abandon the road across the BLM land. The maintenance by the property owner is a discretionary action, if the BLM does not choose to reclaim the land."

Billings pointed out that the owners have used the road since before it was BLM land. The owners have the established right-of-way. And if the land was reclaimed, they wouldn't be able to get to their house.

"Not if it is a RS2477 road," Childress said. "Because of FLPMA (Federal Land Policy and Management Act of 1976), then the access to the property was via the county access after it was turned into a revised FLPMA right-of-way. If the county abandons it, they are impacting the legal access to the house."

Browne asked if the county could reassign the right-of-way to the landowner to which Childress replied: "Yes, if we were to approve it." Browne then asked: "What would be the basis for disapproving that request?"

Childress said the agency has the option to oppose such reassignment, but "most are approved."

Billings asked the definition of reclamation and whether it was to return the land to nature, to which Childress replied: "Yes." Billings didn't think the BLM could cut off access that the landowners have had since 1910, just because the county decides it's not going to maintain that road any more. "I think they have a right-of-way that exists. Ben, could you weigh in on that?"

Young said: "If the county has the historic right-of-way before BLM, then yes, the process could be both the abandonment and the assignment of the right-of-way to the property owner."

Browne said: "The State Land Office, in my conversations with them yesterday, expressed concern that per their legal counsel they have a concern that the public access continues farther than where county maintenance ends and may provide access to a very large portion of BLM land southwest of where abandonment is proposed. Or are you satisfied that it is not beyond the point where the sliver of land we've been talking about ends?"

Childress confirmed that the road goes through state land providing connectivity to BLM land.

Edwards said: "I don't get that. How can it possibly be since that road is private?"

Childress said he didn't have a specific answer, but "there are lots of county roads that go through private land, state land and BLM land. There may be additional due diligence required. There may be a historical map that shows what it was like at the time of the request for a FLPMA right-of-way."

Edwards asked: "Are you saying the county could have claimed that road without the property owner knowing we had done that?"

Childress said prior to FLPMA, the county could establish roads for public access. After FLPMA, it repealed that part of the law, and required the county to go back in and claim roads through that revised statute. "We used that to grant them what we called a FLPMA right-of-way."

Edwards said from the beginning of the road for a significant portion, it goes through private land then gets to public land.

Childress said a lot of county roads, as he understands it, were created to provide services to private landowners, as well as access. "I would have to do additional research and the county would have to do the same on why the county initially established this as a county road."

At this point, Bradberry came to the podium to clarify the road to the south. "It was totally privately built, privately funded with private equipment. No state, federal or county equipment has ever been on that road."

Edwards asked Young about this "road that has suddenly appeared. If we vote to abandon from the revised proposal, because we are not maintaining in any way this newly appeared road, our action today does not affect that road in any way, right?"

Young confirmed that was correct.

Edwards continued: "So any further action on that road by the State Land Office or BLM would have to prove whether it was a county road at some time, and they would have to interact with the private landowners about whether it is a road that the public has used for access."

Young said his one caveat is if at some point the county at some point in history did claim a right-of-way on that road, it would have to be proven. "The county didn't even have a record of the BLM right-of-way, which was provided to us by BLM. Historically our maintenance ends at this point. Just because we don't maintain it, doesn't mean the public doesn't have the right to access it. That would be a bone of contention between them and the property owners. But Mr. Bradberry has testified that the public no longer uses that road. To the extent of public use beyond our maintenance, the public may make a claim for historic use."

Commissioners approved closure of the public hearing.

Next came consideration of the ordinance.

Browne moved to approve the abandonment, which excludes the sliver of land across public land. Edwards seconded it.

Billings asked for clarification that it excludes the 209 feet of road through the sliver of public land.

Browne confirmed that the abandonment would end where there is a safe place to turn around. "The reason I'm for this is because he believes it doesn't change anything about public access."

Ponce said he was not comfortable approving the abandonment at this time. "I would love to research this all further."

Salas said it was a convoluted issue that might cause the county to be drug into court, as well as the possibility that BLM would just leave it alone.

Browne asked if one more month would be enough time.

Ponce said he thought so. "I've advocated for the public accessing public land. It's not just what the public says, but also what the public agencies say. I also see Mr. Bradberry's concerns."

Edwards said she would be happier if whatever the vote would be that all questions had been answered.

Billings questioned whether anyone would ever have all their questions answered.

Ponce said: "At least I will have tried."

Young said that the hearing could be re-opened.

Edwards moved to table the issue to the October meeting, and it was approved.

Young said he could look into statute, but the believes that the county has done extensive historic research.

Ponce said he would set up a time to talk to Childress.

The next article will get into proclamations and public input at the regular meeting.

For the previous articles, please visit: https://www.grantcountybeat.com/news/news-articles/74190-grant-county-commission-holds-work-session-090622-part-1 ; https://www.grantcountybeat.com/news/news-articles/74224-grant-county-commission-holds-work-session-090622-part-2; https://www.grantcountybeat.com/news/news-articles/74257-grant-county-commission-holds-work-session-090622-part-3; and https://www.grantcountybeat.com/news/news-articles/74283-grant-county-commission-holds-work-session-090622-part-4 .