The two property owners in the Modesty Creek Road public access case want the controversial road closed while the case is pending trial.
And the Montana Supreme Court is taking a look at their request. The court has decided not to dismiss Letica Land Co. LLC and Don McGee’s appeal of a district court decision to keep the road open during the trial.
This comes after the high court denied in February a similar appeal by the Michigan-based Letica and private landowner Don McGee to close the Modesty Creek Road near Anaconda to the public.
Anaconda commissioners opened the road in early 2012 by cutting the locks on the gate that had barred access to public land for decades. The road wends its way through the private land to public land.
Letica and McGee have argued that the road isn’t a county road and that their property rights are being violated. Public land proponents counter that the road has been used by the public for more than a century.
Anaconda-Deer Lodge County filed to postpone the trial pending the high court’s decision whether to hear the appeal. Letica’s lawyer Martin King said his client has also consented to put the trial on hold. The county has argued that a prescriptive easement — historic public use — exists on the two properties. The landowners disagree.
“It’s our position the county and the public shouldn’t be able to use any portion of the road until they prove the existence of this public prescriptive easement,” King said.
King said he will file a brief with the high court by May 2. The county has 30 days to respond, though it can get a 30-day extension. Unless the high court asks to hear oral arguments, it will rule on whether to hear the appeal within 120 days after the county files a reply to King’s brief.
Both the Anaconda-Deer Lodge County attorney, Ben Krakowka, and the chief executive, Connie Ternes-Daniels, declined to comment for this article.