Kling Road issue appealed to SD Supreme Court

July 13, 2018 GMT

BUTTE COUNTY — The vacation of Kling Road outside of Belle Fourche continues to be a contentious issue and is now in the hands of the South Dakota Supreme Court.

On May 21, 4th Judicial Circuit Court Judge Michelle Comer dismissed an appeal filed March 27 by Abby Olson, Ben Blake, and Jodi Massie, who live in the vicinity of the closed road. The appeal was determined by Comer to have been file one day after the deadline as laid out by state statue.

The appellants disagree with the Butte County Commission’s Feb. 6 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, asking the court to determine whether the appellants filed the appeal prior to the appeal deadline, as they assert.

The questions still outstanding in the minds of the appellants are first, what is the effective date of the county commission’s decision, and secondly, was the appellants’ notice of appeal of the commission’s decision to vacate Kling Road filed within the timeline allotted by statute.

According to the S.D. Supreme Court Clerk’s Office, the court has received the appeal and the parties in the case have a chance to order transcripts related to the circuit court matter from the court reporters. Currently, no transcripts have been ordered, but if some were, the court reporter would have 45 days to complete the transcripts. Once the transcripts are filed, the appellants have 45 days to file their initial brief. Following the filing of the appellant brief, the appellees, which, in this case, are the county and Chris Kling, will have 45 days to file a response brief. The appellants will have 15 days after that to file a reply brief.

Unless transcripts are ordered, the first appellant brief is due Aug. 10.

Once briefing is complete, the court will set the issue to a calendar, either oral, where the parties involved would orally argue the case, or a non-oral, meaning the court would consider the case based solely upon the filings made. Typically, oral arguments are heard in Pierre, but depending on when the hearing is scheduled, the case could be heard at the University of Sioux Falls where the court travels in October.

Attempts to reach the appellants and their attorneys for comment were unsuccessful.

The issue arose after the commission’s vote citing 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 public hearing Jan. 11 and later the Feb. 6 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 local rancher, Chris Kling, for the vacation of the county road and section line, five miles west of Belle Fourche, following the June 2017 closing of the Kling Road 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.

On March 22, the commission rejected petitions signed by 523 Butte County residents to refer the commission’s decision to vacate the road, arguing that it would not be lawful for the issue to be put it to a public vote.

On April 12, Olson, Blake, and Massie filed a second appeal in the case related to the commission’s decision not to refer the issue to the ballot. The next hearing in the second appeal case is scheduled for Oct. 19.

Butte County State’s Attorney Cassie Wendt, on behalf of the county, filed a motion to dismiss the appeal April 2 for lack of jurisdiction on the grounds that the appellants did not file their initial appeal in a timely enough fashion.

“When you look at the statutes as they’re set out, I believe that they missed that filing deadline by one day,” she said at the May 21 hearing.

South Dakota Codified Law (SDCL) 31-3-9 sets out the statutory requirements for vacating a highway or section line. The statute reads: “Such resolution and order shall be printed in the minutes of the meeting of the board and the resolution shall be published in the official newspaper of said township, if any, otherwise in the nearest legal newspaper to said highway, once each week for at least two consecutive weeks, and such highway shall be, after a lapse of thirty days, vacated, changed, or located, without further proceedings unless appeal as provided for in this chapter.”

Wendt said that she reads the statutory language to say, and it was her position, that the statute sets out that the appeal needs to take place prior to the lapse of that 30 days, adding, “If the court agrees with that position, it leaves this court with no jurisdiction to move forward, and I would ask the court to dismiss this action.”

Kellen Willert, attorney representing Chris Kling, who also filed a motion to dismiss, echoed Wendt’s comments regarding the statutes that regulate road vacations at the May 21 hearing.

“(the statute) … requires an appeal to be taken within 30 days of when the decision becomes effective and we submit to the court that that effectiveness is 30 days after the second publication,” he said. “The only requirement to make the resolution effective … is that it be published once each week for at least two consecutive weeks. Thirty days after that second publication by our calculations is March 25, a Sunday.”

So, Willert said, the notice of appeal should have been filed no later than March 26.

Dylan Wilde, one of the attorneys representing the appellants, disagreed with Wendt and Willert’s interpretation of the section of the law that governs appeals.

SDCL 31-3-34 states that “any person who is a resident or landowner of such county or of land lying within ten miles of the boundaries of such county and who feels aggrieved by the final decision of the board in awarding or refusing to award damages in locating, vacating, or changing any public highway under the provisions of this chapter, or, notwithstanding the provisions of SCDL 31-3-14 … may appeal from such decision to the circuit court for the county within thirty days after the date on which the decision of the board has become effective …”

The definition of “effective” in this case, Wilde said, is what is in question.

“So, it isn’t 30 days from the date of the resolution or the publication, but it’s within 30 days after the date of the decision of the board has become effective,” he said at the May 21 hearing.

Comer filed an order granting the motion to dismiss the appeal May 21, citing that the court reads the applicable statutes SDCL 31-3-9 and 31-3-34 to be consistent with one another and finds that the board decision was effective after two consecutive weeks of publication.

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