DA 14-0780, Nov. 17, 2015, 2015 MT 323 MT Supreme Court Ruling
Modesty Creek Road is located about eight miles northeast of Anaconda, intersecting with Racetrack Road and Spring Gulch Road running northwest to the U.S. Forest Service boundary and nearby lakes.
In 2012, Dale Schafer and Shawn DeMers, Anaconda-Deer Lodge County residents found county courthouse records suggesting that Modesty Creek Road was owned by the County. The Road had been gated and locked. The Anaconda-Deer Lodge County commission investigated whether the alleged county road was a public county road.
In March 2012, Attorney Susan Callaghan delivered her opinion to the commissioners, stating there was enough evidence to show the county owns the road. Evidence included an 1866 county map showing a road running along Modesty Creek. 1889 and 1902 Commission meeting minutes described road petitions and declarations matching the description of Modesty Creek Road. Road use findings also revealed the public had been on Modesty Creek Road since the late 1800s for mining and agricultural purposes. “All of the evidence gathered indicates the portion of the road known as the Modesty Creek Road has been consistently and publicly used for a variety of purposes since the early 1900s through sometime in the 1980s, when a gate was placed on the road,” Callaghan concluded.
The locks on the Modesty Creek Road gate were cut with bolt cutters unlocking public access to Modesty Creek Road for the first time in more than 20 years. The Anaconda-Deer Lodge County commission unanimously reaffirmed Modesty Creek Road as a county road at its meeting, following the recommendation of Butte attorney Susan Callaghan. But the open access was short lived. Letica Land, LLC, owner of ranch property where Modesty Creek Road runs northeast of Anaconda, took legal action against Anaconda-Deer Lodge County after its affirmation of Modesty Creek Road as a county road.
This victory was short lived. Letica Land Company, LLC and Don McGee appealed the judgement of the Third Judicial District Court. On November 17, 2015, the Montana Supreme Court issued a split ruling. The Supreme Court agreed with the district court’s decision that the lower portion of Modesty Creek Road is a county road. However, the Court reversed the lower court’s decision, ruling the upper portion of Modesty Creek Road, which splits off and leads to U.S. Forest Service land was not a public road because for 30 years, the county and the public did not object to it being closed.
Anaconda-Deer Lodge County petitioned 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.
In May 2017, Anaconda-Deer Lodge County commissioners decided to return to court to fight over the Modesty Creek Road, concerning alleged damages. The five commissioners voted unanimously to reject Letica’s settlement offer.