Fox Rothschild Files for Summary Judgment in South Dakota Subdivision Litigation

Attorneys: ‘They might just as well have seeded Hideaway Hills with time bombs’

RAPID CITY, S.D.--(BUSINESS WIRE)--Citing “voluminous” evidence of irrevocable and wanton damage to their property by the state, a summary judgment for inverse condemnation has been filed on behalf of class action members of the Hideaway Hills subdivision in Black Hawk, S.D.

The case dates to April 2020, when a sinkhole opened up in the neighborhood, revealing an abandoned state-operated gypsum mine. South Dakota for generations operated gypsum mines to support its for-profit cement company. In 1994, when the state sold the land to a private developer, it retained rights to the subsurface minerals.

“The state exploited the area’s gypsum deposits, pushed around some dirt and seeded the land, then, in the name of maximum profits, sold the surface estate without regard to the long- or near-term stability of that acreage,” said attorney Kathleen Barrow of Fox Rothschild, who, along with attorney David Grant Crooks, represents Hideaway Hills homeowners.

“It is time for resolution. It has been more than four years and the state has done nothing to protect or compensate these families,” said Ms. Barrow. “They might just as well have seeded Hideaway Hills with time bombs. Unfortunately, the homeowners are left to gingerly navigate the ever-present dangers under their feet.”

Earlier this year the court overseeing the class action took the unusual step of reopening the class. An additional 100 homeowners have since joined the litigation which seeks more than $60 million in total damages. The class now represents a reported 164 plaintiffs, including 12 homes in an evacuation zone and 158 more homes threatened by potential collapse.

Geotechnical testing on soils in the neighborhood has shown high concentrations of water-soluble gypsum in the fill dirt the state used to reclaim the acreage on which the subdivision was built. Testing indicates that the soils used by the state for mine reclamation contain an average of about 50 percent pulverized gypsum, with a high of 80 percent, leaving it prone to disintegration when exposed to moisture.

The case is Andrew Morse and John and Emily Clarke et al. v. State of South Dakota, No. 46CIV-20-000295 in the Meade County 4th Judicial District. It is set for trial later this year.

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