State asks Lincoln County judge to dismiss landowners' lawsuit over new state prison site

The South Dakota Department of Corrections has asked a Lincoln County judge to dismiss a pending lawsuit filed against it by a group of Lincoln County homeowners regarding the site of the new men's penitentiary.

Filed in Lincoln Count court Wednesday by Grant Flynn, the assistant Attorney General for the State of South Dakota, the department argued the state is immune to the lawsuit based on sovereign status and the state can preempt county zoning ordinances unlike what Neighbors Opposing Prison Expansion, NOPE, claimed when it first filed the lawsuit.

NOPE requested more information about the site selection and asked a judge to rule on the DOC's ability to pick a location if the DOC didn't request a conditional use permit in the lawsuit filed in early November, weeks after the DOC and Secretary Kellie Wasko made the announcement the state had purchased more than 300 acres of land in rural Lincoln County for the new site of the men's penitentiary.

The South Dakota State Penitentiary in Sioux Falls has been in use since 188, and lawmakers voted earlier in February to start the process of finding and purchasing land for the construction of a new prison.

More: DOC’s lack of transparency about new SD prison could have long-term consequences, expert says

Because of that vote, the state argued the Legislature gave the DOC the latitude to purchase land, contract for the planning and preparation services and more. The Legislature didn't give guidance on a proposed location, meaning DOC could pick the site as part of its discretionary function.

Having a judge interrupt the process of the DOC picking a location is "outside the purview of the courts," and could violate the state constitution, according to the motion.

Overall, the state argued NOPE and Lincoln County cannot supersede the authority of the DOC, and ultimately, the Legislature.

"Because the creature cannot exceed the authority of its creator, Lincoln County cannot subject the state to its laws, necessitating the dismissal of Plaintiffs' complaint," Flynn wrote.

NOPE fails to show verified harm from prison site location

Throughout the motion to dismiss, the state hinged its argument on the basis that landowners and non-landowners representing NOPE do not actually show harm from the proposed location. NOPE made vague statements and does not have facts to support the statements, such as failing to demonstrate how the prison will disrupt rural life or proof that property values fell.

The state notes even if NOPE were successful in the lawsuit, the DOC could still build the project in the Lincoln County location because of a state law that states the DOC can condemn private property that the state owns for public use.

Flynn, in his arguments for dismissal, wrote the grounds NOPE was suing on were without merit and "constitute nothing more than Plaintiff's attempt to keep an unwanted institution out of their neighborhood."

More: 'It was a shame': Lincoln County residents question lawmakers at forum on new men's prison

State: Counties can't use zoning laws as a weapon against unpopular state projects

The state continued to argue there have been Supreme Court rulings that have found local zoning laws do not apply to land owned by the state, known as the "General Rule." That rule has been used a number of times with operating county jails and prisons as an essential function of government.

"If any county could override the State's intent to construct a prison through zoning ordinances, the state would be solely at the mercy of the counties as to whether it could construct a new prison at all, not to mention the location," according to the motion.

If NOPE was successful and the prison was not placed at the location in Lincoln County, the state would be unable to perform its duties of public safety and would violate the long-held precedence that the state has authorities over counties, according to the motion.

AJ Swanson, the lawyer representing NOPE, told the Argus Leader Friday that the group would be filing a response to the state's motion just after the start of the new year.

A motions hearing has been set for Jan. 22 in Lincoln County.

This article originally appeared on Sioux Falls Argus Leader: DOC asks judge to dismiss NOPE lawsuit on new men's state pen