STURGIS | A more than three-year legal tug-of-war over the incorporation of the Buffalo Chip Campground as a town — an issue likely headed back to the South Dakota Supreme Court — could ultimately boil down to the difference between the words "and" and "or."
Buffalo Chip attorney Kent Hagg, of Rapid City, said Friday that a notice of appeal to the state Supreme Court will likely be filed this week seeking to overturn a 4th Circuit judge’s February ruling that the campground about 3 miles east of Sturgis failed to meet the residential requirements of a state law in filing to become a municipality in 2015.
In a written ruling filed Feb. 22, 4th Circuit Judge Gordon Swanson ordered the town of Buffalo Chip to be dissolved because the Sturgis motorcycle-rally campground did not have at least 100 residents as required by SDCL 9-3-1 at the time of its incorporation in 2015.
A news release from the city of Sturgis, which has steadfastly opposed the incorporation, stated the lack of residents was just one of the issues surrounding the campground becoming a legal municipality but that Swanson’s ruling was sufficient to “nullify the incorporation as a municipality.”
Swanson’s ruling nullifying the incorporation is “based on common sense and the plain language of SDCL 9-3-1 as in effect when Buffalo Chip was incorporated, the statute required that a municipality have at least 100 residents and at least 30 registered voters to be incorporated. It would not make sense for the Legislature to authorize the incorporation of a municipality with no residents,” Swanson ruled.
“His ruling was pretty clear that the town needs residents, and the Buffalo Chip doesn’t have residents and is not a town,” Sturgis City Manager Daniel Ainslie said.
However, Hagg said the codified law in place in 2015 required municipalities to have at least 100 residents “or” 30 voters. In 2016, the state Legislature changed the law to require municipalities to have at least 100 residents “and” 45 voters.
“In my opinion, it’s a stretch for a court and the state to have imposed an entirely different word in the statute that’s not in there, that ‘or’ really means ‘and’,” Hagg said.
The campground fills with thousands of visitors during the Sturgis motorcycle rally, but has few, if any, year-round permanent residents. Hagg said about 53 voters listed the Buffalo Chip as their address of record in 2015.
“They can declare their residences, for voting purposes, to be anywhere they wish,” Hagg said.
Legal challenges from the city of Sturgis, the state’s Municipal League and other opponents have continued since Meade County voters approved the campground’s incorporation in April 2015.
In January of 2018, the state Supreme Court vacated a circuit court order appealing the 2015 election results, ruling only the state — not a lower court or other municipality — had the jurisdiction to bring the case to court.
The state attorney general’s office asked the high court for permission to intervene, which the court granted in March.
Then in May, the court denied the state’s request to bring the case back before the Supreme Court but told the state to proceed at the circuit court level.
Filing of a notice to appeal would stay the judge’s decision and allow the town of Buffalo Chip to continue to operate as a municipality "until the Supreme Court rules otherwise,” Hagg said.