by CHRIS ROGERS
The legal battle over Winona County’s frac sand mining ban could go all the way to the Minnesota Supreme Court. Last week, the would-be mining company Minnesota Sands asked the state’s high court to take the case. One of the key issues, as far as Minnesota Sands is concerned, is whether frac sand mining and plain-old sand mining are the same thing.
After a citizen campaign led by the Land Stewardship Project (LSP), the Winona County Board voted 3-2 to ban all new frac sand mines, processing facilities, and loading terminals in 2016. The ban drew a line between “construction minerals,” such as sand used for local road construction, and “industrial minerals,” namely sand used for hydraulic fracturing. Minnesota Sands sued, claiming that both the sand itself and the mining process are essentially the same and that the county’s ban discriminates against non-local uses of sand and violates the U.S. Constitution’s interstate commerce clause. Lawyers for the county argued that there are substantive differences between frac sand mining and construction sand mining and that the county’s ban was based on the county’s legitimate interests in protecting groundwater, air quality, and scenic beauty.
Winona County District Court Judge Mary Leahy ruled in favor of the county in late 2017, and this summer, so did two of the three judges on a Court of Appeals panel. “The county’s zoning ordinance amendment does not violate the dormant commerce clause because it even-handedly bans both in-state and out-of-state interests from mining all silica sand in Winona County,” Judge Renee Worke wrote, distinguishing silica sand from ordinary sand.
A third appellate court judge, Matthew Johnson, agreed with Minnesota Sands: it is the same sand mined in a similar way. In a dissenting opinion, Johnson wrote that the ban violates the interstate commerce clause.
The Supreme Court does not have to take Minnesota Sands’ case. Only a fraction of cases appealed to the Minnesota Supreme Court are heard. However, in its petition to the high court, lawyers for Minnesota Sands made a point of highlighting the split vote on the Court of Appeals and Judge Johnson’s dissent. The company’s lawyers also stressed the impact Winona County’s ban has on frac sand mining across the state. “This case will have far-reaching consequences,” they wrote. “Several other counties in Minnesota have silica-sand deposits, and many more have other exportable minerals. They are watching this case closely because it will set the ground rules for how they can regulate those exports. Those rules should come from this court.”
The company’s petition to the Supreme Court suggests that the county could have limited the size of all sand mines in order to achieve its goal of protecting the environment. “That would be truly ‘even-handed,’” attorneys for Minnesota Sands wrote. Before the ban was adopted, some county leaders argued for a limit on the size and number of mines instead of a ban.
In a written statement, Minnesota Sands President Rick Frick described the ban as weakening property rights for all landowners. “It creates a real economic risk and threat to anyone who benefits from the use of their land,” he stated, adding that groups in other counties may attempt to pass frac sand mining bans if the Winona County ordinance stands. “We are hopeful the court will accept our petition and take up this case and the broader issues that are involved,” he continued.
LSP Policy Organizer Johanna Rupprecht described the petition as a corporation’s attempt to undermine local democracy. “This last-minute, desperate attack on the ban is further proof that wealthy corporate interests are deeply threatened by the power of organized people working together through our local governments to protect the common good for people and the land,” Rupprecht wrote. “We are confident that, in the unlikely event the Supreme Court even chooses to hear this petition, the ban will once again be upheld. The right of local governments to protect their communities from harmful, extractive corporate activities, such as frac sand operations, is very clear,” she added.