ANACONDA – A closed-door meeting in the ongoing Modesty Creek Road lawsuit has some residents concerned about maintaining public access on the disputed route.
But Anaconda-Deer Lodge County Attorney Ben Krakowka insists the executive session, scheduled for Tuesday’s commission meeting, is to discuss litigation strategy and any action to settle the case must come back before the public.
Commissioners and Chief Executive Connie Ternes-Daniels will meet with Krakowka to discuss a “confidential settlement communication,” sent Jan. 22 from the attorney representing landowners who are fighting to keep Modesty Creek Road closed.
The road, located about 10 miles northeast of Anaconda, partially passes through the Montana Big Horn Ranch, owned by Michigan-based Letica Land LLC. It also runs through adjacent property owned by Don McGee, before meeting with public lands in the Beaverhead-Deerlodge National Forest.
Letica Land and McGee are suing the county and individual commissioners – Mark Sweeney, Rose Nyman, Neal Warner, Robert Pierce and Elaine Lux-Burt – after they unanimously reaffirmed Modesty Creek Road as a county road early last year. Officials cut the locks off of private gates that kept the road closed for more than 30 years.
Now, with a newly elected chief executive and three new commissioners in place of Sweeney, Nyman and Warner, Krakowka will address the confidential letter and close their meeting pursuant to attorney-client privilege.
State open meeting laws allow a closed meeting to discuss litigation strategy “when an open meeting would have a detrimental effect on the litigation position of the public agency.”
“Given the nature of this communication, I have to address the letter with commissioners outside of a public setting,” Krakowka told The Montana Standard. “Necessarily, if the commission decides to accept or reject any offer in this letter, they have to do that in an open meeting.”
Krakowka did not disclose any details in the letter. Attorney Mark Stermitz, representing both Letica Land and McGee, declined comment when contacted Thursday. Stermitz is also not permitted to attend the closed session.
Letica Land and McGee filed their lawsuit in June 2012 seeking compensation for damages and loss of enjoyment on their property, alleging the commission violated due process when it opened Modesty Creek Road.
Meanwhile, Butte District Judge Kurt Krueger – sitting in place of Anaconda District Judge Ray Dayton – denied their request for a preliminary injunction to keep the road closed. The ruling, issued in July, found that “the record, taken as a whole, indicates Modesty Creek Road is likely a public road.”
A trial is scheduled to begin at 9:30 a.m. Monday, May 6.
Krakowka is fielding calls, he said, from sportsmen asking about the letter from Stermitz. He is adamant that no decision will be made in secret.
“We are in no way going into a closed meeting here where the commission will come out and say it has accepted a deal,” Krakowka said.
Residents Dale Schafer and Shawn DeMers, caretakers on private land in the area, first began researching the issue more than a year ago. Their records date back to the late 1800s, describing a road declaration along Modesty Creek.
Schafer said the road was never abandoned, which is the only way a county road can lose its status.
“We have that in black and white, on paper,” Schafer told the Standard. “This is a county road. We’ve already proven that.”
The group and its supporters are sticking to their guns, DeMers said, but they still question why the commissioners and Krakowka would choose to close their meeting to the public.
“It just really upsets me,” he said. “If we’re going to be summoned to court, we have the right to see what’s written in that letter. There should be absolutely no secrets.”
Both DeMers and Schafer said people have been respectful of private property driving on Modesty Creek Road. Game warden Joe Kambic said he wrote one ticket for someone hunting without landowner permission, but otherwise complaints have been tame.
“There has been a lot of traffic, but as far as breaking the law, that’s the only one I can think of,” Kambic told the Standard. “I’ve definitely had bigger problems elsewhere.”
Public access and keeping county roads open remains Krakowka’s priority, he said, and the case file remains open for anyone to glean at the Clerk of District Court’s office.
“That has not changed in the slightest,” he said.
The commission meets at 6 p.m. in the courthouse courtroom.
— Reporter George Plaven may be reached at 496-5597, or via email at firstname.lastname@example.org. Follow him at Twitter.com/@George_Plaven.