by CHRIS ROGERS
Last week, Winona County became the first county in Minnesota to pass a total ban on frac sand mining. Experts on both sides of the issue said Winona County is likely the first county in the nation to do so. The victory for environmentalists came after years of citizen activism against frac sand generally and a more than one-year-long campaign for this ban specifically. Ban supporters celebrated their historic achievement. Ban opponents promised to sue the county.
Late last month, the County Board voted to reject other ideas and move forward with a ban, but they delayed a final vote until last Tuesday so that Winona County Attorney Karin Sonneman could finalize the county’s legal rationale for the ban.
The ban will block new mines, processing, or trans-loading facilities in rural Winona County. That means Minnesota Sands will not be able to pursue the cluster of frac sand mines in Saratoga Township it proposed in 2012, and the Walcholz farm in Warren Township would not be allowed to follow-up on the sand prospecting conducted on their property in 2014.
The county ordinance will not apply to cities such as Winona, Goodview, and Minnesota City, where mining, processing, and loading frac sand is still permitted. It will not rule out the possibility of cities annexing nearby rural land to circumvent the county ordinance, as became common practice in Trempealeau County.
For mining opponents who have, for years, felt like their local governments were deaf to their concerns about ground water quality and scenic beauty, the news of the County Board’s final vote on the ban was a victory that seemed unimaginable just a couple years ago. The election of pro-ban commissioner Marie Kovecsi to the County Board in 2014 changed the balance of power and made it possible.
“We felt a ban was a needed for the health and well-being of people and the environment, and the vast majority of residents in the county agreed,” said Warren Township resident Barb Nelson, who helped lead the ban campaign.
“We’ll be suing,” said Saratoga Township Supervisor Tom Campbell. Campbell once signed a lease to allow Minnesota Sands’ to mine frac sand on his property. Now, he said he does not have any agreement with the company and has no interest in mining on his property, but he and several other landowners are worried about what environmentalists might try to ban next. For Campbell, this ban could lead to an erosion of property rights in the county.
Ban opponents made last-minute bids to convince the County Board that the ban was legally unwise. “What happened is not legal, I don’t think,” Tom Rowekamp said of the ban. Rowekamp owns the only permitted frac sand mine in the county and has discussed a possible interest in expanding it, which will be forbidden under the ban. An attorney for the Minnesota Industrial Sand Council, Peder Larson, sent the County Board a letter calling the ban illegal and indicating that the county would face lawsuits if the ban is passed. “If you do ban this — I do believe you all got the packet the letter of intent — there will be landowners and there will be lawsuits if this does go through,” Campbell told the board just before the vote.
The ban would violate business owners’ right to equal protection under the U.S. Constitution and the constitution’s prohibition on local and state governments regulating interstate commerce, Larson argued. The new ordinance bans mining sand for use in hydraulic fracturing oil wells (fracking), but allows mining sand for construction projects and dairy cow bedding, even though the mining processes are essentially the same. That is discriminatory, opponents argue.
Sonneman and her assistant county attorneys are the only lawyers whose job it is to watch out for Winona County’s best interest and give the County Board objective legal advice. Throughout the year, Sonneman has maintained that the proposed ban is legally defensible. Earlier memos from Sonneman described the ban as likely to withstand a legal challenge. In her latest memo to the board on October 4, Sonneman advised, “An ordinance that has incidental impact on interstate commerce, unless the burden on commerce is clearly excessive in relation to local benefits supported by the record, could potentially withstand a [lawsuit.]”
Commissioners Marcia Ward and Steve Jacob pressed Sonneman at last Tuesday’s meeting. “I think it would be only reasonable for us to take those [legal threats] very seriously and possibly reconsider what we’re contemplating doing,” Ward said. Icy weather prevented Larson from attending the meeting and Jacob and Ward tried to delay the vote in order for Sonneman to meet with him prior to a final decision. Ward and Jacob’s motion to delay the vote failed, and Sonneman responded that she had worked hard to make the ban as strong as possible to withstand a court challenge. “I cannot control anyone who wants to sue this board, but I can certainly make darn well sure that the board’s decisions are supported by the law and the facts,” she stated.
These lawsuit threats should surprise no one, Sonneman added. “You’d kind of have to be living under a rock to not know that someone was probably going to sue over a decision one way or another,” she told Jacob.
Commissioner Greg Olson said the rationale, facts, and citizen input to support a ban was strong. “And I’d put more weight on the public who has spoken at that podium or at the Planning Commission than I do on a letter from an attorney in Minneapolis,” he said of Larson’s letter. “We represent the citizens of Winona as a whole, and I think they’ve been clear.”
This ban is unnecessary because the County Board could vote against any permits under the current rules, Jacob said. “All this is doing is kickstarting the litigation process. You already have the power, you possess votes to stop a mine from happening,” he told Kovecsi, Olson, and commissioner Jim Pomeroy. He added that the majority of citizens who live in the rural areas where the ban applies do not want it.
The County Board voted 3-2 to pass the ban. Kovecsi, Olson, and Pomeroy voted for it. Jacob and Ward dissented.
“I’m really pleased that a majority of the County Board listened to the will of the citizens and followed through on passing the ban even in the face of threats and pressure of outside interests,” said Johanna Rupprecht, an organizer for the Land Stewardship Project (LSP), a sustainable agriculture group that led the ban campaign.
“I was disappointed that there wasn’t more discussion, that there wasn’t a compromise,” Rowekamp said, referring to alternative proposals that would have limited the number and size of mines. “It didn’t really matter what anybody had to say; there was no giving on their part whatsoever,” he added.