Higgins Gulch residents threaten to close road to public

Residents who live along the second mile of Higgins Gulch Road, past Hillsview Road, are threatening to block the road to public access unless Lawrence County accepts to take over maintenance of the road. Pioneer photo by Jaci Conrad Pearson

DEADWOOD — While Lawrence County maintains the first mile of Higgins Gulch Road, residents maintain the second mile and that point has become a contentious one.

On Feb. 11, residents representing the second-mile landowners, threatened to turn the road into a private road blocking public access starting May 15 unless the county takes over maintenance 

It was the second meeting on the matter this year, the first being held Jan. 21. The county did not take action at either meeting.

Lawrence County Deputy State’s Attorney Bruce Outka clarified the difference between the two miles of road.

“It is helpful to think about the road in two parts — first mile and second mile,” Outka said. “The first mile is considered to be part of the county system and is maintained by the county.  The second mile is not on the county system and is therefore not maintained by the county.”

The mileage is measured from Hillsview Road. Mile 2 is marked by a yellow “County Maintenance Ends Here” sign, and specifically goes to Mile 2.2 where the road enters state land and then the Forest Service land.

Gary Arseneau addressed the commission on behalf of Higgins Gulch Road second mile residents, of which there were around seven in attendance at the Feb. 11 commission meeting.

Citing a Forest Service traffic survey conducted from May 31, 2019 through Sept. 16, 2019, where vehicle counters were placed near the homes along the road, and a second one was placed near the Crow Peak Trailhead parking lot, Arseneau said there are 9,000 traffic movements a month, 306 per day in the summer, on Higgins Gulch Road.

He said approximately 6,000-7,000 traffic movements are by non-Higgins Gulch residents 

“This road is used by a lot of people in the entire community. They enjoy it,” Arseneau said. “We enjoy it … We are a small portion of actual users and that’s the point I want to make.”

Referencing an easement document recorded in the Register of Deeds Office in Book 342 Page 265 as controlling the county’s obligation to maintain the portion of road, Arseneau stated the

document provides Lawrence County with an easement and right-of-way to construct and maintain a road. 

Arseneau further added that the Forest Service responsibility for the road is limited only to the extent appropriations are available, concluding that it is the county’s obligation to

maintain the road if the Forest Service is unable or unwilling to do so.

Arseneau said that while the group has gathered a large amount of data, he chose to focus on one document. 

Arseneau specifically referenced Page 265 in the in the county records book.

“This is a document, back in May of 1958. It’s between Ed Moeller, Pearl Moeller, and Lawrence County … it says in there, the county has an easement and right of way to construct and maintain a road. That’s the county. Not the forest service.”

Steve Kozel, Northern Hills district ranger for the Black Hills National Forest, addressed the issue.

“The Forest Service does not have an easement or right of way, so we are not responsible jurisdictionally to manage the road,” Kozel said. “Our road maintenance is not for residential purposes. Transportation access, public access, and timber haul is what drives a lot of our road network access.”

Kozel said the factual basis for that goes back to early records from the latter part of the 1950s that granted a series of easement rights of way to Lawrence County that describe the Forest Service as building the road and maintaining it subsequent to available funds.

“From what I can discern from the records, the Forest Service did build the road, along with Homestake Timber Company,” Kozel said. “That was in the 1950s, and we’ve maintained it two times a year since the 1950s, making minor improvements. Fast-forward to now and the controversy about increased maintenance and improvements for safety purposes. We don’t have any proprietary documents. The easements and right of way have been granted to the county. We don’t have any proprietary rights. We’re not a public road maintenance agency.”

Arseneau said the first mile of Higgins Gulch Road began being maintained by the county in the 1970s and argues that the second mile should also be maintained the same way.

“It’s the same road, with the same kind of easement agreements,” Arseneau said. “We understand, why, up until now, only section 7 (the first mile) was being maintained, was because there were residents down there. And that makes sense. The county’s not going to spend money on maintaining a section of road, where there’s nobody up there. It doesn’t make sense. But now we have residents that are up in section 12 and 13 (the second mile).”

With the development of the Meadows at Higgins Gulch subdivision, about eight more homes have been built in the area.

In anticipation of the commission suggesting a road district be formed, Arseneau said “we don’t need a road district. The county is responsible for maintaining it.”

Arseneau said he wanted the public to know: “Our intention is not to create a big stink storm that this could go into. We don’t want to do that.”

Commissioner Randy Deibert said there is a process for placing a road on the county system and a process for taking one off the county system, both involving the state.

“To my knowledge, we have no record of this road ever becoming officially on our system through that true process,” Deibert said. “Furthermore, on the deed that you’re speaking of, we have no signature by the county or resolution by the county accepting this right of way … we cannot take on lands except by resolution. If you read the document that you’re quoting so much, it also talks about Exhibit A, which is not attached and it’s not filed at the courthouse. So, if we want to get into this level of detail, we can. But that’s not why we’re here today.”

Arseneau said that if that is true and the road was never on the system, then the easement doesn’t exist.

“Back to this document, if it was never even accepted as an easement … which we’re bringing up today, is that that easement doesn’t exist. This is private property,” he said.

Outka said that was a bit of a mischaracterization.

“The language says the county gets the easement to be constructed by or under the supervision of the United States government,” Outka said. “It doesn’t say anything about the county maintaining or anything of that sort. So I just want to point that out.”

Arseneau said that since nobody accepted the easement, the Higgins Gulch group feels that the easement has not been complied with since the county does not maintaining the second mile and thus, the road is private.

Higgins Gulch Road resident Jared Lukens-Black addressed the commission, acknowledging the liability those who maintain the road take on by doing so.

“They’ve been doing that, keeping it open and towing out residents who get stuck heading up to Crow Peak this time of year or when there’s mud up there … they can’t continue to do that,” Lukens-Black said. “We love having it open to the public, because we are part of the public. We enjoy having access to Forest Service and all the amenities in this county from all the other roads that are taken care of, and we don’t wish to keep residents away from the best and easiest access to this area and, particularly Crow Peak … we want to keep the road open. Our intention is not to make it private. Our intention is not to close it off.”

However, Lukens-Black said that if the county does not take on the responsibility, residents in the area would halt public access to the road.

“We’d put up a sign April 1 stating that May 15 we would have to block off the road and that it would be private,” Lukens-Black said. “If we don’t come to an agreement. We hope that we don’t have to get to that.”

Kozel said that for management purposes, the Forest Service still has access to Higgins Gulch via Tinton Road.

Deibert said that at the January meeting, the commission handed out information to Higgins Gulch presenters on how to get the road included into the county’s road system.

 “I think that’s a pretty clear process, and I haven’t seen any of that process started,” Deibert said.

Arseneau said his group looked at the process and based on the documents referenced above, they didn’t need to do the process.

“Because the county is already supposed to be maintaining it,” he said, adding that the process is cost-prohibitive for the group.

Outka said the commission offered no official position on the proposed road matter.

“The ultimatum to start maintaining the road by the date specified was issued in rapid-fire fashion before any discussion could occur,” Outka said. 

No further discussion of maintenance of the second mile of Higgins Gulch Road is scheduled by the commission at this time. 

“Unless and until that happens, it appears the deadline imposed by the landowners will occur,” Outka said.

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(1) comment


Rebuttal & comments to Lawrence County Commissioner’s statements in the Black Hills Pioneer article dated 2-20-20

By: Gary Arseneau


1. Concerning Mr. Outka’s explanation of the “difference between the two miles of road”, yes, the first mile through Section 7 is on the county road system and the second mile is not. We have to ask WHY. The easement agreement through Section 7 (mile 1) referenced in Book 342 Page 267 reads exactly the same as the easement agreement through Sections 12 & 13 (mile 2). If the Section 12 & 13 easement was never accepted by the county as Mr. Deibert states, then probably the easement agreement through Section 7 was never accepted either. Thus, the road through section 7 (mile 1) should also be a private road. So, the county has been maintaining a private road for some 25 years? Whatever “process” was used to place Section 7 on the county’s road system, then the county should use the same “process” to place Sections 12 & 13 (mile 2) on the county’s road system. I suspect that back in the 70’s, the county commissioners simply took a vote to add the first mile to the county’s road system. The residents of mile two just want the same level of county maintenance that the residents of the first mile receive.

2. Concerning Mr. Deibert’s comment about exhibit A:

Quote from Book 342 Page 265

“It is understood that the road for which this easement is granted is to be constructed by or under the supervision of the United States Forest Service under specifications also described in Exhibit A,

True, in the easement document there is nothing that specifically states “Exhibit A”, but on the following page (page 266), there is a “description of right of way” with latitudes/longitudes, widths, distances and surveyor’s signatures. I am guessing that this is what “exhibit A” is referring to.

3. The Black Hills Pioneer article stated:

“Outka said that was a bit of a mischaracterization.”

“The language says the county gets the easement to be constructed by or under the supervision of the United States government,” Outka said. “It doesn’t say anything about the county maintaining or anything of that sort. So, I just want to point that out.”

The easement document does not reflect this. Here is a quote from the easement document, Book 342 Page 265.

“WITNESSETH: For and in consideration of One ($1.00) Dollar, the receipt of which is hereby acknowledged, parties of the first part do hereby grant and convey to the party of the second part an easement and right of way to construct and maintain a road over the property described in accordance with Exhibit “A” attached hereto and made a part hereof.”

The party of the second part is Lawrence County, and it states they are responsible to “construct and maintain” a road over the property. The US Forest Service is not a “party” to this easement agreement.

4. Concerning Mr. Deibert’s statements about a “process” that is not being followed, again, there is no need for the residents to complete any process, as the easement agreement clearly states that it is the county’s responsibility to “construct and maintain” the road. If the county has a “process” they want to follow to add mile 2 to the county’s road system, then they (Lawrence County) should complete it, not the residents.

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