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Minority in six-member township takes ruling family to court

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IMLAY | In Imlay Township, there is something more predictable than the wind that blows tumbleweeds across the crusted dirt and patchy grass of the Badlands.

Year after year, when the township residents gather for their annual meeting, the four members of the Whitcher family are elected and appointed to all the township offices.

Nobody else bothers to run, and why would they? At last count, there were only two other resident voters in the township. No matter how the math is done, two never beats four.

One of the two is Doug Albertson, manager of the Conata Ranch. He claims the Whitchers have used township money and equipment to benefit themselves and their ranches while attempting to charge his ranch for routine road work.

When the Whitchers charged him $1,500 for the replacement of two cattle guards — also known as autogates — on a township road through one of his pastures, Albertson complained.

"They said, 'That’s the way it is, and if you don’t like it, we’re going to take the autogates out,'" Albertson said in a recent interview.

The Whitchers declined to be interviewed for this story, but two of them testified Wednesday in a bench trial in a Rapid City courtroom, where they denied doing anything improper or illegal. Albertson and his lawyer asked the judge to nullify both the $1,500 invoice and the Whitchers’ threat to remove the cattle guards, and a decision is expected soon.

Albertson’s boss is billionaire Vin Ryan, founder and chairman of Boston-based Schooner Capital, which is the registered manager of Conata Ranch LLC. Ryan could pay the $1,500 and move on, but for him, the dispute is about more than money.

Echoing the 1773 rallying cry of the Sons of Liberty, who dumped chests of tea into Boston Harbor near the modern site of Schooner Capital's offices, Ryan told the Journal what he thinks about the situation in Imlay Township.

"It's taxation without representation," he said. 

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Imlay Township map

Change in Conata Basin

The boundaries of Imlay Township, in southeastern Pennington County about 50 miles southeast of Rapid City, encompass 110 square miles. The township includes part of the Conata Basin, a sprawling plain between the White River and the elevated rim known as the "wall" of the Badlands.

The Conata Ranch headquarters and the three Whitcher homes are all in the general vicinity of the ghost town of Imlay, which is 10 miles east of Scenic on state Highway 44.

Imlay Township has never been densely populated, but there was a time in the early 1900s when settlers tried to farm on the arid, sun-baked prairies in and around the Badlands. The Dust Bowl of the 1930s chased most of the people away, and many of the abandoned homesteads reverted to the ownership of the federal government. Today, much of Imlay Township consists of land belonging to Badlands National Park and also to the Buffalo Gap National Grasslands. The grasslands are open to leased grazing, which has allowed some hardy ranch families to stay and make a living raising cattle.

The U.S. Census Bureau counted 20 people in Imlay Township as recently as 2000, but that number has dwindled. The current crop of Whitchers is the last remaining cattle-ranching family with any history in the township. Spouses Monte and Martha Whitcher and Monte's brother, Jim, have been fixtures in township government since at least the 1980s. More recently, Monte and Martha's son, Julian, also has been involved.

Their business is the traditional ranch, the raising of beef cattle, which is in stark contrast to the work and aims of their new neighbors.

In recent years some of the traditional ranchers in and around the Conata Basin have sold to outsiders including Ryan, who began buying land to form the Conata Ranch in 2012, and the nonprofit Nature Conservancy, which includes Ryan on its global board of directors. Ryan and the Nature Conservancy have in turn worked to restore and protect the Conata Basin’s grasslands and wildlife.

Their work has included replacing cattle with bison. The shaggy beasts evolved with the grasses of the Great Plains, and some conservationists consider bison a crucial part of the Conata Basin's ecological health.

Albertson manages Ryan’s herd of 850 bison on privately owned and government-leased pastures totaling roughly 40 square miles. Another bison herd, numbering about 1,000 and owned by the federal government, roams nearby Badlands National Park.

Request sets up dispute

It was bison, and their particular needs, that set the Conata Ranch and the Whitchers on a path to court.

Bison are bigger and faster and can jump higher and leap farther than cattle, so Albertson needed to upgrade some pasture enclosures as the Conata Ranch grew its herd. One of the needed upgrades was a pair of new cattle guards on Bouquet Table Road.

A cattle guard resembles a gate that has been laid flat and embedded in a roadway over a shallow trench. The metal bars of the gate-like structure are spaced closely enough to support vehicles, but far enough apart that the hooves of cattle or bison would fall into the gaps if they tried to cross.

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A cattle guard is at the entrance Tuesday of Bouquet Table Road in the Imlay Township.

Cattle guards are necessary on Bouquet Table Road because the graveled, township-maintained route runs through a pasture that the Conata Ranch leases from the federal government. Motorists who turn south off Highway 44 onto Bouquet Table Road cross a cattle guard, drive through the bison pasture, and cross a second cattle guard where the pasture ends.

In early 2014, the existing cattle guards measured 7½ feet from front to back and 10 feet across the roadway. Albertson wanted new guards to contain bison, which would be 2 feet longer from front to back and the same 10 feet across the road.

Though Conata Ranch is responsible for maintaining the fences around the federally owned and leased pasture, the federal government considers the cattle guards to be part of the road, which is maintained by Imlay Township. So Albertson approached the township board at its March 2014 annual meeting.

A surprise invoice

All of the elected and appointed township positions were then (and still are) held by a Whitcher. Jim was chairman of the board, and Julian was a board member. Martha held the combined positions of clerk and treasurer, and Monte was the overseer of road work.

The Whitchers were hesitant to replace the cattle guards but eventually agreed to it. The terms of the deal later came under dispute.

Albertson said he understood that the Conata Ranch would buy and donate the cattle guards to the township, and would help install them with the township’s assistance and oversight. He never expected a charge for the use of the township’s equipment or labor, he said, because he knew the township had replaced other cattle guards and had never charged for the work.

The Whitchers said they understood that the Conata Ranch would not only buy and donate the new cattle guards and allow Monte Whitcher to oversee their installation, but they also understood that the township would charge for the work since the board members viewed it as a specialty job.

“Buffalo gates are something we’ve never done before,” Martha Whitcher said Wednesday on the witness stand.

Whatever each side understood in their own minds, there was no discussion at the time about any potential charge.

In June 2014, Albertson, Monte Whitcher, Jim Whitcher and Jim’s hired man removed the old cattle guards and installed the new ones, using Conata Ranch’s backhoe and the township’s front-end loader.

Afterward, Martha Whitcher sent Conata Ranch a bill for five hours of machine use and labor at a rate of $300 an hour, for a total of $1,500.

From the plains to court

The bill’s arrival in the mail surprised Albertson, who did not pay it. Martha Whitcher sent second and third notices as the weeks wore on.

In September 2014, Albertson wrote the Whitchers a letter requesting a special township board meeting to discuss the invoice. Jim and Martha Whitcher responded with a letter threatening legal action if the bill was not paid in 30 days.

The Whitchers did not take legal action, but instead gave Albertson his special meeting in November 2014. Albertson claims he was not allowed to speak at the meeting. The Whitchers dispute that claim.

Whatever the nature of the discussion, it resulted in the Whitchers' adopting a motion to remove the new cattle guards if Conata Ranch did not pay its bill in 30 days.

Albertson said he was allowed to speak only after the meeting adjourned.

“I told them that if they wanted to play this way, we’d have our lawyers involved,” Albertson recalled Wednesday from the witness stand. “And here we are today.”

Within a month after the November 2014 meeting, Albertson and Ryan filed a circuit court appeal of the township board’s motion to remove the cattle guards.

Their first maneuver in the appeal was an attempt to force the Whitchers to turn over township documents, including financial records. After the Whitchers were served with that motion, they met as the township board and rescinded their earlier threat to remove the cattle guards.

That did not deter Albertson and Ryan, who saw nothing in the Whitchers’ action to officially void the $1,500 invoice. And by then, Albertson and Ryan wanted access to the information that the Whitchers seemed reluctant to provide.

Finances revealed

Some financial information about the township is publicly available, and more was unearthed by the Conata Ranch's requests and entered as exhibits at Wednesday's trial.

Most of the township’s funding comes from a share of vehicle registration fees that Pennington County collects from vehicle owners and distributes to townships based on the amount of road miles they maintain. With recent increases in those fees, Imlay Township's share of the money has grown to more than $20,000 annually. The township gets small amounts of additional funding from other sources.

Reports filed with the state Department of Legislative Audit show the township’s annual spending ranged from $11,500 to $42,000 over the past five years. During those same five years, the Whitchers paid themselves salaries and mileage totaling an average of $4,200 annually, split among the four family members.

The Conata Ranch’s attorney, Mann, raised numerous questions Wednesday during the trial about the Whitchers' handling of the township's public funds.

During one tense exchange, Mann quoted from township records showing a $12,800 reimbursement to Martha Whitcher for a $9,730 trailer she bought for the township. Whitcher explained the difference in the two numbers by saying the higher amount included reimbursement for a sprayer she bought for the township a number of years earlier.

"So you just decided, four of five years later, to reimburse yourself?" Mann asked.

Martha Whitcher paused several moments before giving a one-word answer: "Yes."

The attorney for the Whitchers, Michael Hickey, got Albertson to acknowledge that before and during the installation of the cattle guards, Albertson never asked whether the Conata Ranch would be charged for the work. Hickey also got Albertson to acknowledge that it would have been easy to ask, and that the question might have prevented all the later trouble.

The trial ended with Circuit Judge Jane Pfeifle granting both sides' attorneys three weeks to make their final arguments in writing.

Among the finer legal points in the case is a claim by Conata Ranch that the $300-per-hour fee charged by Imlay Township was illegal, because the township board did not adopt a required resolution to pay its road overseer more than the $4-per-hour limit that is otherwise set by state law. The Whitchers and their attorney, meanwhile, claim that the Conata Ranch's entire appeal was rendered moot when the Whitchers rescinded their earlier threat to remove the cattle guards.

Ryan and Albertson have already won a minor victory by prying loose some information about the township’s finances. But they still want the judge to formally nullify the threatened removal of the cattle guards and the $1,500 invoice.

For now, the cattle guards remain in place, and Ryan and Albertson continue to operate under the Whitchers’ rule.

“When they’ve got 67 percent of the people in the township,” Albertson said, “there’s nothing else you can do.”

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Contact Seth Tupper at seth.tupper@rapidcityjournal.com

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Enterprise Reporter

Enterprise reporter for the Rapid City Journal and author of "Calvin Coolidge in the Black Hills." Receiving encrypted news tips through Peerio with the user name seth_tupper.