2nd Supreme Court appeal filed in Kling Rd. vacation case

BELLE FOURCHE –– The Butte County Commission’s Feb. 6, 2018, vacation of the Kling Road west of Belle Fourche continues to be up in the air, and that doesn’t appear to be changing anytime soon.

Butte County State’s Attorney Cassie Wendt spoke to the commissioners Tuesday, informing them that, in conjunction with Chris Kling’s attorneys, she’s filed an appeal to the state Supreme Court asking the state justices to determine whether 4th Circuit Court Judge Michelle Comer’s decision to allow for further discovery in the case ahead of the September trial was appropriate.

“If the Supreme Court accepts the appeal, everything at the circuit level will stop again, and we’ll have them answer that question,” she said. “And then once they make a decision, then they’ll direct the circuit court how to move forward.”

Wendt said that the reason the two parties objected to Comer’s decision was because case law states that there is no discovery allowed. 

“And that the information that the circuit court should review is the information that was provided at the hearing,” she said. 

She said case law states that the court should look at the original findings and make a decision and that any other discovery would bring in evidence that wasn’t considered at the original hearing that the commission used to make its decision.  

“So why give the judge new information that they (the commissioners) didn’t have and expect her to make the decision that they’ve made?” she said.

Wendt said she has not heard from the state’s highest court on the topic yet.

This isn’t the first appeal filed in the case

In March, the South Dakota Supreme Court reversed Comer’s decision to dismiss an appeal of the commission’s vacation of Kling Road. The issue was argued on Jan. 9 in front of the Supreme Court. The opinion, filed March 13, states that a remedy for the procedural issue exists with the Legislature and “to conclude otherwise would require us (the court) to rewrite statutes in direct violation of our judicial scope of authority to interpret what the Legislature said (not what we think it should have said). We, therefore, call on the Legislature to act.”

The opinion states that the appeal, filed March 27, 2018, by Abby Olson, Ben Blake, and Jodi Massie, residents in the affected area, was filed in a timely manner, “and the circuit court erred when it dismissed the appeal.”

Basically, a reversal means an appellate court sets aside the decision of a lower court because of an error. A reversal is often followed by a remand, meaning the Supreme Court sends the issue back to again be considered by the circuit court.

The appellants disagree with the board’s decision to vacate a portion of Kling Road, calling it arbitrary and unreasonable. Additionally, the group disagrees with Comer’s ruling and filed a notice of appeal with the state Supreme Court June 26, 2018, asking the court to determine whether the appellants filed the appeal prior to the appeal deadline, as they asserted.

The issue arose after the commission’s vote, which cited safety and financial concerns as the main justifications for the vacation of the roadway. 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.

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.

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

Kling presented the petition, signed by 36 Butte County residents, to request that Kling Road, previously owned and maintained by the county, be vacated from the road’s intersection with U.S. Highway 34 to the intersection of Kling and Sourdough roads on the north line of Sections 14 and 15. The distance Kling requested to be vacated is approximately one-and-one-half-mile.

Because the road had already been closed and blockaded for public travel for six months at that time and the county had no plans to repair the bridge and reopen the road in the foreseeable future, mainly due to funding issues, Kling’s petition, filed Nov. 20, 2017, alleged that under the circumstances, the maintenance of the road would be a waste of public funds and that the public would be better served by the proposed vacation. 

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 travel. 

Commissioner disagrees with lengthy litigation 

Commissioner James Ager inquired about what it would take to begin the process of discontinuing the entire case right now, “and looking at exploring options of opening that road back up?” 

Ager asked if studies were completed on the bridge and waterway it covers prior to the Kling Road vacation.

Commission Chairman Kim Richards said the county did not, adding that the bridge, which at that time was closed for six months, was very low on the list of priorities due to its dilapidated condition. 

“But we’re talking about putting culverts and low water crossing put in using culverts we already own and having them engineered at a minimal cost and the county installing them,” Ager rebutted. “So we’re talking about $50,000, probably not even that much (since) we already own the culverts.”

He questioned why the same process, performing a hydraulic study and engineering other potential low water type crossings, wasn’t applied to the Kling Road Bridge.

“This whole mess could have been avoided,” Ager said. 

Commissioner Karrol Herman told Ager that this case was different because Kling filed a petition asking the commission to vacate the road. Ager alleged that the county had no right to do that without first exploring all other potential remedies.

“I still think there’s time to save this for all involved,” he said.

Richards said he would not be in favor of installing a culvert in that location for fear of obstructing the water flow to such an extent that it could flood the Kling property nearby in a high water event.

Commissioner Frank Walton agreed with Richards’ sentiments, adding that in his opinion, because the bridge that spans Hay Creek is high enough out of the water that it would not impede the flow of water. However, a box culvert could, he said, block some of the water flow, causing it to fill out around the concrete barrier and into the land of the nearby home.

The bridge’s priority is another aspect Richards takes issue with.

“I’m never going to change my mind that it’s so far down the list that you won’t see any money available in my lifetime,” he said. “There’s so many other priorities in the county.”

Richards also added that he didn’t consider the situation to be much of an inconvenience for people who have to reroute around the closure. He said according to Google Maps, it is actually faster for those people to take Gray Road, which is a north-south road just east of Kling Road.

The potential closures of other more rural bridges in the county could require 30-75 miles of detour for residents, farmers, and ranchers who use the area, Walton said. 

“For me, it’s really hard because I see us working so diligently on all these other bridges that have gone out with very simple solutions, and we didn’t do that on that one (Kling Road Bridge),” Ager added.

According to a 2015 report, one in five of the county’s bridges is in desperate need of repair or replacement, and another 20 bridges are not far behind. In other words, of the county’s 100 bridges, half of them are in need of almost immediate attention.

At that time, Richards said, the commission identified bridges that were of higher priority due to a host of reasons. The Kling Road Bridge was not very high on that list.

“We’ve got to pick up the ones that affect the greatest number of people the most,” he said. “And if you’re looking at Old (Highway) 212, there’s only two people that live up there but all the cattle ranchers truck all their cattle up and back twice a year. It’s a primary road, so we have to provide them a means to get there.”

Herman said the county needs to consider that cattle, alfalfa, wheat, corn, and more need to be hauled in and out of the area where the bridges that are considered the highest priority. 

Ager agreed that the county should maintain a priority list related to its growing bridge backlog.

“But what if that one is 20th on the list; why can’t we just wait until it gets its turn and work on it?” he asked. “Why can’t we do that with all of them in the county? So what if it takes 20 years?”

Ager said he feels the county should continually seek solutions to keep all county roads open and accessible to all.

“I am totally convinced that in my mind, I made the right decision when I voted yes,” Richards said referring to the vacation of Kling Road. “I think we have to stand by that; we can’t just say, ‘Oh, we changed our minds.’”

The Pioneer spoke to a clerk in the Supreme Court’s office Friday who said that the court has received the commission’s petition for discretionary appeal. Now, Olson, Blake, and Massie, and their attorneys, have until Tuesday to respond to the appeal. After that, the court will consider the appeal and decide whether or not the court will hear the issue.

The civil trial in the case has been scheduled for Sept. 26-27 in Butte County. 

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