Outstanding decision! MN Supremes uphold Winona County frac sand mining ordinance

We were tending our chickens when this tweet came through on our feed:

BREAKING NEWS: MN Supreme Court Upholds Winona County Frac Sand Mining Ban! Winona County acted fully within its rights in using its zoning authority to prohibit industrial mining. Further affirmation that gov't exists to protect people & land. Full LSP statement to come. pic.twitter.com/qpdZK5N9Wo

— LandStewardshipProject (@LSPnow) March 11, 2020

We've been covering the Winona County ordinance fight--and silica sand mining in Minnesota itself--for many years. One of the best resources on the issue was created by the information pros at the Minnesota Legislative Reference library Silica (Frac) Sand Mining. Of particular interest: the legislative history that led to the creation of laws that allowed Winona County to pass and defend the ordinance:

Silica sand mining has been a divisive topic in Southern Minnesota. Advocates claimed the industry would bring jobs and economic development to the regions involved. Environmentalists and public health experts urged caution due to concerns over potential negative impacts of the fine silica sand dust on air and water quality. There are known health risks associated with airborne crystalline silica. Authority to plan for and regulate land use activities rests primarily with local governments. Goodhue and Wabasha Counties passed moratoriums on sand mining in late 2011 in order to study the practice which had already become prevalent in parts of Wisconsin.

Minnesota legislators addressed the issue of silica sand mining during the 2013 Legislative Session. Laws of Minnesota 2013, chapter 114 requires a permit from the Department of Natural Resources (DNR) before excavation or mining of silica sand can take place in certain parts of the state. The DNR is directed to do extensive water studies of any frac sand mine located near a trout stream. The Environmental Quality Board (EQB) was asked to assemble a silica sand technical assistance team to provide local governments with assistance with ordinance development, zoning, environmental review and permitting, and other issues related to silica sand. The 2013 legislation further mandated the EQB, in consultation with local units of government, to develop model standards and criteria for mining, processing, and transporting silica sand that local governments may use when developing local ordinances. The EQB developed the model standards/"tools" and they were approved on March 19, 2014.

Due in part to the legislative and regulatory changes put in place in 2013-2014, and a slowing demand for silica sand, mining project approvals have been minimal. In November 2016, Winona County commissioners voted to ban frac sand mining in their southeastern area of the state, making it the first county in the state to take such a stand.

Here's the Supreme Court's decision:

Minnesota Sands LLC v.  County of Winona uploaded by Sally Jo Sorensen on Scribd

UPDATE 3/11/2020: Land Stewardship Project organizer Johanna Rupprecht sent our this statement from the group:

RELEASE: Minnesota Supreme Court Upholds Winona County Frac Sand Ban 

Decision Marks 3^rd Time Ban is Supported in the Courts

 

3/11/20 

 

ST. PAUL, Minn. -- The Minnesota Supreme Court today upheld Winona County’s landmark ordinance banning frac sand mining. The court upheld that Winona County acted fully within its rights in using its zoning authority in 2016 to prohibit industrial mining operations. This ruling upholds a previous District Court ruling issued in 2017 and an Appellate Court ruling issued in 2018. 

 

“This ruling further affirms that our government belongs to the people and exists to take bold action to protect the common good, for both people and the land,” said Johanna Rupprecht, an organizer for the Land Stewardship Project (LSP), which worked with Winona County residents on a 17-month grassroots campaign to put in place the frac sand mining ban. “This ruling affirms the power that organized people have, acting through our local governments, to protect our communities from harmful, extractive industries that would place corporate profits above communities’ well-being. Winona County residents fulfilled their responsibility to act together and make sure elected officials protected the common good, and the courts have repeatedly supported that right.”

 

Frac sand corporation Minnesota Sands, LLC, which refused to disclose the identities of its owners and backers, had challenged the ban in court as an attempt to circumvent the will of the people in Winona County, according to Rupprecht. The Supreme Court has now upheld that the Winona County ban is fully within the Constitutional rights of a local government, ruling against Minnesota Sands’ claims that the ordinance violated the Commerce Clause and created a “taking” of property from the company. 

 

“The destructive frac sand industry has no place in the kind of economy we need for our rural communities to thrive,” said Barb Nelson, who lives outside of Lewiston in Winona County and is an LSP member who helped lead the campaign to pass the ban. “People took action to pass this ban because we understand that the land has inherent value, and that the health of the land and of people are interconnected. By destroying the land, we also harm ourselves.” 

 

LSP submitted an amicus curiae (“friend of the court”) brief to make sure the interests of its Winona County members were fully represented in the court process.  

 

“Today’s ruling is an inspiration to people in all communities fighting back against corporate power and organizing to prevent harmful, extractive proposals, whether they are frac sand operations, factory farms, immigrant detention centers or others,” said Rupprecht. “People have the power, when we work together, to protect our communities and to achieve a vision for the future that upholds our values.”  [end update #1]

[Update #2] At the Star Tribune, Matt McKinney reports in Minnesota Supreme Court upholds Winona County ban on frac sand mining:

A sand mine business argued that the ban was unconstitutional, but had lost earlier rulings before appealing to the high court.

The Minnesota Supreme Court on Wednesday let stand a Winona County ban on frac sand mining, disagreeing with a local sand mine business that the 2016 ban was an infringement of their rights.

The ruling ends a four-year legal battle between the Winona County Board and the sand mine business, Minnesota Sands, which had argued in court briefs that the ban was a violation of the commerce clause of the Constitution and a government “taking” without compensation.

The southeast Minnesota county was the first in the state to enact a ban on mining silica sand, a key material for fracturing open shale rock to extract oil and natural gas. The county allowed sand mining to continue for construction sand, a cheaper and less-pure material used on roadways and as an aggregate for concrete.

The ban drew a lawsuit from Minnesota Sands, which had acquired mineral rights in Winona County. A district judge ruled for the county in 2017, dismissing the company’s claims. The company appealed and lost in a 2-1 decision at the state Court of Appeals in 2018.

The case has been closely watched by other counties throughout a region of Minnesota rich with silica sand deposits. Houston County, in the extreme southeast corner of the state, nearly enacted a ban before Winona.

Related posts:

• LSP: MN Supreme Court hearing on Winona Co Frac Sand Ban to be held at U of M April 10
• Victory for local control: Minnesota Court of Appeals upholds Winona Co frac sand ordinance
• Land Stewardship Project statement on appellate court upholding Winona County frac sand ban
• Frac Sand Interests Object to LSP Having Hand in Winona Co's New Sand Mine Ban Lawsuits

Photo: LSP led a vigorous campaign for the ordinance. Yard signs popped like shaggy manes on lawns across the county. Photo via Winona Daily News.

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