Kling Rd. civil trial underway

Fourth Circuit Court Judge Michelle Comer today will hear the second day of arguments in the Kling Road vacation appeal case that began Monday. Pioneer photo by Lacey Peterson

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BELLE FOURCHE — The first two witnesses in the Kling Road vacation appeal civil trial testified Tuesday, getting the proceedings off to a slow start.

For just under two years, the Feb. 6, 2018, Kling Road vacation has been up in the air and the issue is before 4th Circuit Court Judge Michelle Comer to decide if the Butte County Commission’s 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 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 prior to the vacation of the road.The commission approved a petition from Chris Kling, a rancher who lives near 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 Belle Fourche. Some opponents complained that routes around the closure would add an additional 2-20 miles one way to their travel. 

The trial began Tuesday with approximately 15 in the audience, not including court staff, attorneys, commissioners, and those involved in the case. With more than 5,000 pages of documents provided from the discovery process, amounting to more than 400 exhibits, there’s a lot to unwrap in the three-day trial.

Stacy Moke was the first witness to testify, telling Dylan Wilde, one of the attorneys for the appellants, that from the beginning, he wanted the commissioners to consider installing a metal culvert to replace the closed bridge and felt his concerns fell on deaf ears.

Moke said that Hay Creek, the waterway that travels from the Wyoming line into Belle Fourche, flowing beneath the Kling Road Bridge, has numerous culverts throughout its route.

Following Moke’s hour-long testimony, Commissioner Stan Harms, who was the commission’s chairman at the time of the vacation, was next. Using meeting minutes, Wilde identified numerous instances the county replaced ailing bridges with culverts in the 18 years Harms has served on the commission. Harms conceded that the county does consider installing metal culverts to replace bridges, when appropriate, but said that option was not considered in the case of the Kling Road Bridge. He did not offer an explanation about why not.

During Harms’ approximately six-hour questioning by Wilde, much of the time Harms answered that he either did not recall or was not aware of context related to the questions posed. Harms does not serve on the county’s highway department committee.

Wilde cited the findings of facts document, dated June 6, 2017, which supported the commission’s decision to vacate the road which stated that on May 22, 2017, Brosz Engineering, the county’s contracted engineering firm, which recommended that the Kling Road Bridge be closed, due to structural safety concerns, permanently, or until it is replaced. However, Wilde said he was unable to locate any documentation of that recommendation, causing him to question the authenticity of the claim.

Kim Kling, brother to petitioner Chris Kling, became a county commissioner in 2003, two years after Harms, and finished his final term at the end of 2018. Wilde asked Harms why, if the Kling Road Bridge was not on the potential closure list on the county’s 2015 Road and Bridge Plan, which had upwards of 20 at the time, was it closed in 2017 and the structure surplused five days later, instead of being repaired or replaced. Harms said he could not recall.

Wilde alluded to the fact that perhaps the reason that a less expensive replacement option, like a metal culvert, was not considered was that Kim Kling’s brother was the vacation petitioner, persuading the commission to subvert the typical routes to accommodate a fellow commissioner. Harms told Wilde that he was not influenced by other people and made his decision to vote in favor of the road vacation.

Butte County State’s Attorney Cassie Wendt filled the final hour of Harms’ testimony Tuesday, inquiring about the county’s shift in priorities related to bridges in recent years. Harms explained that with the state funded Bridge Improvement Grant program coming onboard, the county reworked its bridge repair and replacement prioritizing system, spurring the county to consider numerous factors related to a bridge’s impact. The lack of funding caused the county to think outside the box and analyze the big picture related to those factors, he said.

One consideration, Harms said, was the impact a closure could have on residents in the area of the structure, including potential detours and lengths of alternate routes.

In the case of the Kling Road Bridge, the county suggested travelers utilize Gray Road to access Highway 34, just east of Kling Road. Because there was a short work-a-round, Harms said, the county decided funds would be better spent on bridges in more remote parts of the county to avoid causing residents to travel many dozens of miles around just to get to town, causing “un-proportionate hardships.”

At 5 p.m., the day’s proceedings wrapped up. The trial continue today with Wendt’s cross-examination of Harms. The trial is scheduled to wrap up Monday. At this time, it is unclear when a verdict can be expected. 

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