Buffalo Chip case may be headed back to Supreme Court

February 17, 2019

STURGIS — The ruling of a 4th Circuit judge is what sent the Buffalo Chip incorporation issue to the South Dakota Supreme Court initially, and the ruling of a judge in the same circuit this week may send the case back.

Fourth Circuit Judge Gordon Swanson ruled from the bench Tuesday that the requirement for a municipal incorporation is both 100 residents and 30 registered voters.

“We’re disappointed in the result. We feel we are correct on the law,” said the town of Buffalo Chip attorney Kent Hagg.

At the time of the Buffalo Chip incorporation vote, state law said a municipality may not be incorporated unless it contained at least 100 legal residents “or” at least 30 registered voters. The incorporated area of Buffalo Chip did have the 30 registered voters, but not 100 residents.

The town’s 43 registered voters approved the incorporation at an election in May 2015. Soon after, landowners adjacent the campground and the city of Sturgis questioned the campground’s incorporation as a legal municipality.

The case ultimately led to the South Dakota Supreme Court, which ruled in January 2018 only the state had the jurisdiction to decide the legality of such an incorporation. The state then asked the attorney general’s office to intervene on its behalf in the case.

At issue in Tuesday’s hearing was whether the law meant “or” or “and” at the time of Buffalo Chip’s incorporation.

State law concerning incorporation of a municipality was amended in 2016 to read that a municipality may not be incorporated unless it contains as least 100 legal residents “and” at least 45 registered voters.

“We painstakingly adhered to every requirement with the Secretary of State concerning our incorporation, but the state declined to inquire further,” Hagg said. “When you look at all factors, we believe the Supreme Court will correctly interpret the law.”

The state was requesting the court to vacate the articles of incorporation of Buffalo Chip and order its dissolution.

As of Friday, Swanson’s ruling has yet to be filed in the Meade County Clerk of Courts office, but Hagg said that at no time during the Tuesday hearing did he hear Swanson say that Buffalo Chip is no longer a town.

The Buffalo Chip town council is expected to make a decision on appealing Swanson’s decision at its Monday meeting. Hagg said Swanson’s ruling can be stayed by the town of Buffalo Chip’s decision to appeal, he added.

The Buffalo Chip incorporation saga began in February 2015 when a 3-2 decision by the Meade County Commission set in motion years of legal wrangling.

The county commission declared then that petitions concerning the incorporation of the town of Buffalo Chip followed state law, and that an election should be scheduled so the proposed town’s residents could vote on the matter which they did.

Legal challenges ensued. Then, on May 11, 2016, a one-day bench trial meaning there was no jury, was held before 4th Circuit Judge Jerome Eckrich.

Eckrich concluded that the census survey and map submitted by the Buffalo Chip Campground were not legal, and that people who voted in a referendum to approve the town did not technically live at addresses where they registered to vote.

Sturgis City Manager Daniel Ainslie said Swanson’s ruling sets aside the “purported” municipal incorporation of the campground as a town.

“The judges’ ruling is determinative. This specific ruling is more than enough to nullify the incorporation as a municipality,” he said.

Ainslie said common sense dictates that Buffalo Chip is not a town because no one lives there.

“Towns must have residents. A logical reading of the state statute says that, and that is what it means,” he said.

Ainslie said a significant matter in the case is that of electoral integrity.

“The lack of residents was just one of the issues surrounding the incorporation of the campground; however, this specific ruling is more than enough to nullify the incorporation as a municipality,”

he said.

Ainslie admitted he is ready for the legal wrangling to be done.

“We hope they don’t appeal and that this will finally be over.

I think everyone is ready for it to be done,” he said.

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