Protect our access to public land
Although it’s far away in the middle of Montana, another case of private landowners trying to block public access has cropped up and it’s worthy of statewide scrutiny.
The Butte Standard refers to it is as the Modesty access case, and it will soon be heard by the Montana Supreme Court. In 1980 a landowner put locked gates on the Modesty Creek Road, which leads to thousands of acres on the Beaverhead-Deerlodge National Forest. In 2012, the Anaconda-Deer Lodge County Commission opened the road because it had never been legally abandoned and it was illegally closed.
The current landowner, a Michigan company called Letica Land LLC, and a neighboring landowner challenged the commissioners’ decision and lost in district court, and last December they appealed to the Supreme Court.
Here’s hoping they lose again, because this is one of the more truly egregious cases that seem to happen all the time in this state, and it’s been going on for decades. All too often they involve careless decisions by county commissions to abandon public right-of-ways.
It happens so much that the Montana Legislature passed a law about a decade ago with a provision saying that if abandonment of public right-of-ways causes loss of appreciated access to public land or water, then equal alternative access must be provided.
The law came into play when Flathead County abandoned Wagner Lane along Church Slough, greatly increasing the value of lots owned by a developer who was then obligated to provide a boat launch as alternative access. The landowner then took legal action to block that access and he lost after several years of litigation.
More recently, the Supreme Court ruled against a landowner who attempted to block access to several miles of the Ruby River from public rights-of-way adjacent to bridges over the river. The landowner claimed that he owned the land under the river, but the court said nope, you don’t, because of Montana’s extremely important stream access law.
Similar thinking should be in order regarding the Modesty case. The plaintiffs are claiming that the road being open to the public amounts to a violation of the takings clause of the Fifth Amendment, which prohibits the government from taking private property for public use without compensation.
That kind of tortured logic is common in cases where private landowners are taking away access to public resources. Certainly, private property rights must be supported, but the tendency for people to attempt to claim public land and water as their own is obnoxious and selfish, and it should be rigorously resisted at every turn.
Editorials represent the majority opinion of the Daily Inter Lake’s editorial board.