by Susan Dunlap, Billings Gazette
“Anaconda-Deer Lodge County has not given up its battle with private property owners over public access to Modesty Creek Road, 10 miles north of Anaconda.
In a recent filing, the county is asking the Montana Supreme Court to reconsider its decision.
The high court’s 5-2 decision last month split the road into what’s available to the public. The county argued that the public has the right to use the upper branch of Modesty Creek Road through prescriptive easement. The high court disagreed.
The reversal gave a victory to property owners Don McGee and Letica Land Co. LLC, a Michigan limited liability company.
The two landowners have been battling with Anaconda-Deer Lodge County since 2012 over the public’s right to use Modesty Creek Road. County commissioners cut the locks on the landowners’ gate to enable public access.
In the same decision, the high court upheld the lower district court’s ruling on the lower branch of Modesty Creek Road — that the lower stretch has been county-owned since the late 1800s.
But the lower branch leads to a pond on private property, former county commissioner Mark Sweeney previously told the Montana Standard newspaper.
The upper branch, meanwhile, leads to public land — the Beaverhead-Deerlodge National Forest and several lakes, Sweeney said.
The high court’s petition states that the Forest Service land can now only be accessed through a steep trail, which is located in a different drainage.
The county’s petition asks that the justices reconsider their ruling.
‘From the county’s perspective, we believe when a private person tries to close down a public road or right-of-way, we’re going to pursue that for public access,’ said county attorney Ben Krakowka.”