BUTTE – The highest court in the state said no to public access Tuesday when it reversed part of a lower court's decision on Modesty Creek Road, about 15 miles north of Anaconda.
In a 5-2 decision, the Montana Supreme Court issued a split ruling. It agreed with the district court’s decision that the lower portion of Modesty Creek Road is a county road. But it reversed the lower court’s decision about the upper portion of Modesty Creek Road, which splits off and leads to U.S. Forest Service land.
This reversal handed a victory to landowner Don McGee and Letica Land Co. LLC, a Michigan limited liability company. The two landowners have been battling with Anaconda-Deerlodge County over the right of the public to use Modesty Creek Road since 2012 when county commissioners cut the locks on the landowners’ gate.
Justice Mike McGrath dissented, saying the landowners never had a right to close the road in the first place. Justice Michael Wheat joined in the dissent.
The high court's reversal ends public access to Beaverhead-Deerlodge National Forest by vehicle from the Modesty Creek Road, Anaconda resident Dale Schafer said. He said the only other way to access to the area, which includes nine lakes, is through a walking trail but, he said, “it takes hours to get up there,” via the trail and elderly cannot make the walk.
The high court said the upper section of Modesty Creek Road, which connects to the national forest land, is not a public road because for 30 years, the county and the public did not object to it being closed. Justice Beth Baker wrote the majority opinion.
Mark Sweeney, a former commissioner, said the commissioners cut the lock in 2012 because the deputy county attorney found information that showed that Modesty Creek Road was, indeed, a county road.
"I always felt it was gated illegally," Sweeney said Wednesday.
Schafer said he found the decision “ridiculous.”
“I don’t get it,” he said.
The lower portion of the road "doesn't go anywhere," said Schafer, who grew up with Modesty Creek Road as part of his backyard.
"The bottom road dead-ends at a pond on private property," Schafer said.
Modesty Creek Road has been in existence since at least 1889, Schafer said.
“We would never have taken it to trial if didn’t feel we had a solid case,” Sweeney said.
The court said evidence showed that locked gates blocked access to the road from 1980 to 2012. A previous private owner said he locked them after seeing a number of vehicles on the property during hunting season. He also placed ads in the newspaper to let the public know they were restricting access to the property.
“Additionally, the testimony of various witnesses demonstrates that the County and the public ‘acquiesced to locks being placed theron for approximately 30 years,” Baker wrote for the majority.
It was not immediately clear Wednesday if the landowners will restrict access on the upper portion.
Calls to Anaconda-Deerlodge County Attorney Ben Krakowka and Chief Executive Connie Ternes-Daniels were not returned by press time. Calls to Martin King and Mark Stermitz, the lawyers who represented Letica Land Company and McGee were also not returned. Cynthia Walker, the attorney who represented the county also did not return a call.