"Keeping the public on public lands & waters"




Facebook  


Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for our Email Newsletter
For Email Marketing you can trust


Donate via PayPal






Opening the gate - Modesty Road -April 2012

on Modesty Creek Rd. - Deer Lodge County

PLWA pioneer Tony Schoonen has done it again. With the help of PLWA affiliated Anaconda Sportsman and Skyline Sportsman Clubs, Schoonen took action to open a road closed for decades. As we understand it, Tony lead the effort to research road history and keep the issue in front of the Anaconda -Deer Lodge commissioners . Eventually the commissioners hired a private attorney who corroborated the law and facts.. The case was so strong , the commissioners personally went and cut the lock off the gate. We understand the landowners are trying to get a court injunction to close it again, but Tony thinks they have little chance. What a guy ! See Montana Standard story below.

(For those of you not familiar with Tony and his legacy. He and his cohorts were the guys who fought to get the stream access we enjoy today. )


By George Plaven of The Montana Standard | Posted: Thursday, March 8, 2012 12:00 am

ANACONDA — With two snips of the bolt cutters, Anaconda sportsmen unlocked public access to Modesty Creek Road Wednesday for the first time in more than 20 years.

Joined by county officials, including Chief Executive Becky Guay and commission Chairman Mark Sweeney, they removed the locks from a pair of private gates that had long closed a stretch of the road to Forest Service land.Modesty Creek Road is located about eight miles northeast of Anaconda. It intersects with Racetrack Road and Spring Gulch Road, running to Dry Gulch.


The commission unanimously reaffirmed Modesty Creek Road as a county road at its meeting Tuesday evening,following the recommendation of Butte attorney Susan Callaghan.Callaghan, hired by the county to help with research and legal standards,concluded the road is a county road based on records dating as far back as the late 1800s. Furthermore, there is nothing tosuggest the county ever abandoned the road, Callaghan told commissioners.

Sweeney asked to open the gates as soon as possible, which landowners put up sometime in the 1980s.Lorry Thomas, president of the Anaconda Sportsman Club, told The Montana Standard he began fighting for access on Modesty Creek Road from the beginning.To finally see the road open is like a dream coming true, Thomas said.“Now, kids can come up here to hike these mountain lakes like we used to do,” he said.

Residents Dale Schafer and Shawn DeMers, caretakers on nearby property owned by Bozeman doctor Hugh Hetherington, took up the cause in October with renewed persistence.

But landowners in the area have previously stated they are concerned about vandalism and theft if the road is allowed open to the public.

Attorneys for one landowner, Ilija Letica, of the Michigan-based Letica Corp., previously sent a letter requesting they come before the commission March 20.

The letter, signed by Kevin Jones of Christian, Samson & Jones in Missoula, said he was unable to attend the meeting Tuesday.

“In the interest of fairness, and because the issue of the county road has a significant impact on the Letica Land Company property, we would like the opportunity to be heard and present additional information,” Jones stated in the letter.

Jones could not be reached for further comment Wednesday. Ron Peterson, caretaker for Letica, also declined comment.

It is not yet known whether they will file for court action.

Sweeney told The Montana Standard that any additional information should have already been brought forward.“It’s been on our agenda several times, and (Callaghan) has been in contact with them on a regular basis,” he said.Larry Sturm, county road shop supervisor, said he will wait until spring to address maintenance on the county road to make it passable. The sportsman club also offered to help put up new signage, he said.

Tony Schoonen, with the Skyline Sportsman Association, has been involved with Modesty Creek Road and said he is encouraged with the outcome.

“It’s great. When you talk about all the money involved in these road closures, to have a win here is a really big deal,” he said. “This is the kind of attitude it takes, to not give up on these.”

Reporter George Plaven may be reached at 496-5597, or via email at george.plaven@lee.net. Follow him at Twitter.com/@George_Plaven.

Copyright 2012 Mtstandard.com.


APRIL 2, 2012

Modesty Creek status argued: County, landowners define sides

By George Plaven of The Montana Standard | Posted: Monday, April 2, 2012 8:30 am |



ANACONDA — A private land company in the Modesty Creek Road controversy calls Anaconda-Deer Lodge County a “neighborhood bully” for the way it opened public access on the road.

The county, meanwhile, contends it took orderly and legal steps to open the road for the first time in more than 30 years.

Attorneys for both sides outlined their arguments Thursday to a district judge who must now determine whether gates on the road, near Anaconda, should remain unlocked to residents and sportsmen.

County commissioners unanimously reaffirmed Modesty Creek Road as a county Road at its meeting March 6. But Letica Land LLC, which owns the Montana Big Horn Ranch where a stretch of the road passes, has asked for a preliminary injunction to keep gates locked on the road into their property.

Sides argued for seven hours at an injunction hearing March 19, and had 10 days to file their proposed findings based on the evidence.

A final decision now rests with Butte District Judge Kurt Krueger, who is presiding over the case in place of Judge Ray Dayton. It is not certain when Judge Krueger will reach his order.

REAFFIRMATION

Modesty Creek Road is located about eight miles northeast of Anaconda, intersecting Racetrack Road and Spring Gulch Road; a lower branch runs to Dry Gulch, while the upper branch heads northwest to the U.S. Forest Service boundary.

The commission voted to reaffirm both branches of the road based on the recommendation of attorney Susan Callaghan. A group of county officials cut the locks off of Letica’s gates the next day.

Callaghan researched entries in the commission minutes from 1889 and 1902 that describe road petitions and declarations along Modesty Creek, and a county road map from 1886 that shows a road matching the description of the lower branch.

She presented further evidence of historic mining and agricultural use on Modesty Creek Road, including out to the Tungsten Mines property between Thornton and Pozega lakes.

There is nothing to suggest the county ever abandoned the road, which is the only way a county road can lose its status, according to Callaghan.

FIRING BACK

Letica Land, however, is challenging these claims as “the flimsiest of legal pretenses,” and described the county’s actions as “abhorrent to the notions of fairness and justice.”

The county did not show enough documentation from the 1889 and 1902 petitions, they argue. Those records, they said, are incomplete and negligible.

The lower branch of the road, meanwhile, dead-ends on Letica’s property and does not access any public land, making it a “road to nowhere.”

Arguments based on public easement are not valid, they continue, because the Forest Service owned the Letica property from 1905 to 1937 and no prescriptive rights are allowed over federal land. Montana law also prohibited the creation of public easements between 1895 and 1913.

Furthermore, they pointed out a portion of the upper Modesty Creek Road cuts through Powell County, for which Anaconda-Deer Lodge County has no authority to declare a county road.

Powell County was created in 1901, prior to the 1902 road petition, they said.

‘CURATIVE STATUTE’

Callaghan argues that there is no evidence Powell County has ever objected to Anaconda-Deer Lodge County’s jurisdiction over Modesty Creek Road. The only way to access the Powell County portion is through Anaconda’s portion, she added.

“Powell County has at the very least acquiesced to (the county’s) exercise of jurisdiction over the portion of Modesty Creek Road located in Powell County,” she wrote in her brief.

Callaghan admitted in her initial legal opinion that a lack of documentation from the old road declarations does raise questions, but argues that this cannot be used to undermine their effect.

In particular, she uses a state law from 1895 that states all highways, roads and streets laid out by the public and used by the public are deemed public highways – the “curative statute.”

The statute applies to very old roads, and relieves the county from an unrealistic burden that they produce every record for public roads created so many years ago, Callaghan said.

Letica Land, on the other hand, points out the law was not in effect at the time of the 1889 road petition and rejected the statute is a “silver bullet” that turns roads through private property into public rights-of-way.

VANDALISM WORRIES

Ilija Letica, owner of Letica Land, and Calvin Christian, former owner of the Montana Big Horn ranch, both testified at the injunction hearing they kept their gates locked since 1980 to deal with trespassing and vandalism.

Ron Peterson, caretaker on the Letica property, also testified about photographs he took since the gates were opened, and said he saw people trespassing off the road.

Letica Land states the county is not in position to judge the damage to Letica and other landowners from the public driving through their property, running over trees, trespassing and disturbing wildlife.

The county, rather, argues these concerns do not pose irreparable injury required for a preliminary injunction and the court cannot grant the injunction based on their concern that vandalism might happen.

“Remember that (Letica) has the ability to involve law enforcement to address problems, just as other private landowners,” Callaghan writes.

PROPOSED CONCLUSIONS

Keeping the road open is also necessary for the interest of the public, Callaghan writes.

“If the Modesty Creek Road is closed again, the public will again be deprived of its only access to national forest land and access to the Pozega and Thornton lakes areas,” she said. “There is no other road access.”

If the court does not grant a preliminary injunction, Letica Land states the county will “exert its power to trample Letica’s private property rights without due process, and without even a legitimate purpose.”

The county asserts it had the legal authority to reopen Modesty Creek Road, and acted on that authority.

“That (Letica) did not like the outcome, the reopening of Modesty Creek Road, does not mean the (county) or the public should be punished through the granting of a preliminary injunction,” Callaghan said.

— Reporter George Plaven may be reached at 496-5597, or via email at george.plaven@lee.net. Follow him at Twitter.com/@George_Plaven.

Copyright 2012 Mtstandard.com. All rights reserved.




related articles

Ruby River Stream Access Victory
( 07/01/2016 )   7/1/2016PLWA, once again, has been victorious in the battle for the public's stream access on the Ruby River, from the Seyler Lane Bridge, likely the original stagecoach route from Salt Lake City, north to Virginia City and Helena.It has been over a decade that PLWA (formerly known as PLAAI) has been involved in a lawsuit over public access to the Ruby River from Seyler Lane and the Seyler Bridge, a public prescriptive easement right-of-way in Madison County.

"Dark Money" Brought to Light
( 07/01/2016 )   The June-July, Newscasts section of Fly Fisherman reported on the recent investigation by Montana's Commissioner of Political Practices, Jonathan Motl, into a dark money campaign that could overturn Montana's Stream Access.Fly Fisherman recounted the Montana Growth Network's campaign contributions to District Judge Laurie McKinnon's run for our Montana Supreme Court.

public land issues

Seyler Lane Update
9/24/2015Seyler Bridge Easement - More Than Just RecreationUpdate - Kennedys attorney requested a postponement of the September 21 hearing.

Tenderfoot - Four Years and Counting
9/24/2015Tenderfoot Creek is a tributary of the Smith River, joining the Smith a mile or so north of Camp Baker.


    18 more public land issues



Modesty Gulch Road


Opening Modesty Road



Public Land/Water Access Association Inc. or PLWA, is a citizen group organized and operated under the Montana nonprofit corporation act.

TERMS OF USE
Articles and Information on this site represent the opinion of the writer and are not intended as legal advice. Legal counsel may be needed in dealing with specific access situations and issues.
     
      PLWA.ORG   -   Public Land & Water Association