Kling Rd. civil trial behind schedule after Wednesday testimony Two more days added to trial schedule to wrap up hearings April 20-22

The second day of the Kling Road vacation appeal is done and the case schedule has been changed to wrap up the final three days of the trial the end of April. Pioneer photo by Lacey Peterson

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BELLE FOURCHE — Two days into what was originally scheduled to be a three-day civil trial on the Kling Road vacation appeal, the case is behind schedule having only gotten through three witnesses, requiring the court to add two more days to the docket.

For nearly two years, the Feb. 6, 2018, Kling Road vacation has been up in the air and the issue is again before 4th Circuit Court Judge Michelle Comer to decide if the Butte County Commission’s decision to vacate the road was appropriate.

The issue arose after the Butte County Commissioners unanimously voted Feb. 6, 2018, to vacate one-and-one-half miles of Kling Road and bridge, located approximately six miles west of Belle Fourche, citing safety and financial concerns. The vacation of a road removes the public interest in a county road right-of-way, closing it for public use and relinquishing the property to the abutting property owners.

Dozens of community members spoke against the action, pleading with the commission to consider alternatives during both a Jan. 11, 2018, public hearing and the commission’s Feb. 6, 2018, deliberations before action was taken.

The commission approved a petition from Chris Kling, a rancher who lives just yards from the road and bridge, for the vacation of the county road and section line following the June 2017 closing of the bridge due to its decrepit, unsafe condition. 

Throughout the process, community members voiced concerns that the closure of the road would affect their livelihoods, especially the ranchers who depend on traveling freely to and from town. Some opponents complained that routes around the closure would add an additional 2-20 miles one-way to their travels. 

The trial began Tuesday. On Wednesday, with approximately 13 people in the audience, not including court staff, attorneys, commissioners, and those involved in the case. The case had more than 5,000 pages of documents provided from the discovery process, amounting to more than 400 exhibits.

After more than five hours on the stand Tuesday, Butte County Commissioner Stan Harms continued his testimony Wednesday. Harms, who does not serve on the county’s highway committee, told Butte County State’s Attorney Cassie Wendt, who was representing the county commission in the case, that according to the county’s bridge priority list, there were 18 bridges in need of repair on the list before the Kling Road Bridge. At the time of the vacation, Harms said, he did not believe that the Kling Road structure would meet the funding requirements to qualify for a repair or replacement grant through the state’s Bridge Improvement Grant program. 

Additionally, Harms said, that prior to the Kling Road Bridge closure, the county had closed no less than three other county bridges. In each of those circumstances, the county commission considered and handled the closures based on the circumstances of the bridge issue before them at the time. 

Harms told Kellen Willert, attorney for Chris Kling, the party who petitioned the county to vacate the road, that the commission relies on recommendations from Brosz Engineering related to necessary repairs and conditions of the county’s bridges. In this case, in a May 22, 2017, inspection report, Brosz Engineering informed the commission the Kling Road Bridge should be closed due to structural safety concerns. Because the county does not have the financial resources to fund all the bridge repairs that are needed, Harms said the county had to prioritize funds put toward repairs and the Kling Road Bridge was simply too low on the repair list. 

Harms told Willert that in recent years, representatives of Brosz Engineering told commissioners that the time it took to get from the beginning planning stages of bridge replacement to the work being completed was 13 years, on average. He said budget constraints and the availability of short detour options to get around the closure were main reasons he was in favor of the vacation.

Harms testified during the entire morning session of Wednesday’s portion of the hearing. After a lunch break, Kim Kling, former commissioner and brother to Chris Kling, testified. Kim told Dylan Wilde, attorney for the appellants, that he’d served on the commission from 2002-2018. Throughout his tenure with the commission, Kim said that he’d served terms on the county’s highway committee, a subcommittee within the commission responsible for coordinating with Brosz Engineering and the county highway department concerning road and bridge priorities. 

Wilde repeatedly attempted to get Kim to admit to having discussions with Chris Kling about the closure of Kling Road Bridge and how Chris could have access to the structure if it were closed, prior to the actual closing of the bridge. Kim did not deny having those conversations, but told Wilde he could not remember specifically when he and Chris discussed those topics. 

Kim claimed that it was “normal procedure” to surplus bridges after closures and that the county doing so five days after the closure of Kling Road Bridge was not prompted by him. He said that neither closing the Kling Road Bridge nor having Kling Road vacated were goals of his when he was appointed to the commission in August 2002.

Kim said he was not present at the June 15, 2017, special commission meeting when the remaining four commissioners unanimously voted to close the bridge. Additionally, he said he recused himself from both the public hearings, executive sessions, and voting processes related to the road vacation. 

However, Kim admitted that he did not recuse himself from the discussions related to the bridge and road at the highway committee meetings. The county’s highway committee is compiled of two commissioners. In the case of this bridge closure and vacation, those committee members at the time were Kim Kling and Kim Richards. The committee would coordinate with Brosz Engineering and the county highway department related to road and bridge priorities and bring recommendations to the full commission for input and approval.

Throughout his Wednesday testimony, 

Kim Kling’s statements during his Wednesday testimony contradicted his statements given at his Nov. 15, 2019, deposition related to the bridge closure and road vacation no less than three times. 

Kim told Wendt that in a 2015 report prepared by Brosz Engineering, the Kling Road Bridge was ranked in the second worse condition compared to the remaining nearly 100 bridges the county had at the time. When considering priorities for bridge funding, Kim said that as a highway committee member, lengths of detours, inconvenience, and lack of funding raked highest on the list. In the case of the Kling Road Bridge, it was not high on the priority list to be repaired or replaced due to the level of impairment.  

At just before 5 p.m., the day’s proceedings wrapped up. The trial was originally scheduled for one more day, Monday, but due to having gotten through only the first three witnesses in the case, the court postponed Monday’s trial date and added two more, scheduling the final three days in the case April 20-22. Only three of the 10 witnesses scheduled to appear Tuesday and Wednesday actually testified. Due to the court’s full schedule, consecutive earlier dates could not be accommodated. At this time, it is unclear when a verdict can be expected.

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