by CHRIS ROGERS
Throughout 2016, local landowners and industry groups warned that Winona County might be sued over banning frac sand. Yesterday — almost four months after the County Board’s final vote to pass the ban — it happened.
Local landowners filed a lawsuit challenging Winona County’s frac sand ban. In it, they allege that the ban violates equal protection, due process, and private property rights guaranteed by the Minnesota and U.S. constitutions, as well as the U.S. Constitution’s prohibition on local regulations interfering with interstate commerce. They asked Winona County District Court Judge Nancy Buytendorp to overturn the ban.
“It was not a very easy decision,” Saratoga Township Supervisor Tom Campbell said of the decision to file the lawsuit. Campbell is the president of the newly formed nonprofit Southeast Minnesota Property Owners, a group that is one of two plaintiffs in the case. Campbell has expressed interest in mining sand on his property, he argued that the proposed ban would erode property rights generally in Winona County, and he told the Winona Post in an interview after the ban passed, “We’ll be suing.”
Campbell and attorney Gary Van Cleve, of the Minneapolis law firm Larkin & Hoffman Attorneys, declined to comment on who, specifically, the Southeast Minnesota Property Owners are, but according to the complaint, they are all Winona County residents who either own silica sand deposits or have an interest in potentially mining or processing silica sand in the county. In a statement Campbell shared, the nonprofit describes itself as “a group of property owners and residents who grouped together to protect property rights against overreach by local and state governments.”
Roger Dablstein is the other plaintiff, a Saratoga Township resident who had applied for a mining permit in 2012 as part of a cluster of mines proposed by the company Minnesota Sands. The mining proposal has been in regulatory limbo since 2013, when the Minnesota Environmental Quality Board ruled that the company would need to complete an intensive study called an Environmental Impact Statement (EIS). Minnesota Sands never submitted basic information (such as a list of all the mine sites) to begin the EIS.
“We’re saying that the total ban based on the end use of the product is unconstitutional for a variety of reasons,” Van Cleve explained. First of all, the ban is an “arbitrary, capricious, and/or unreasonable” regulation, and there is no “rational basis” to believe that it improves “health, safety, or general welfare,” the complaint alleges. The irrational justification for the ban also violates property owners' right to due process under the U.S. and Minnesota constitutions, the complaint claims. Ban supporters argued that outlawing frac sand mining would protect groundwater and scenic beauty.
Secondly, the ban violates the U.S. and Minnesota constitutions’ equal protection clause, the suit alleges. The November 22, 2016, amendment to the Winona County Zoning Ordinance prohibits mining, processing, or loading “industrial minerals” in rural parts of the county. The ban allows mining sand for some uses (construction and as dairy cow bedding), but bans mining sand for other uses (hydraulic fracturing oil wells, also known as fracking wells). The sand and the mining processes are the same, but Winona County treats would-be miners differently based on what the sand is used for, ban opponents said in 2016. “…[The ban] arbitrarily and irrationally allows one purported type of mineral mining and processing, but completely bans another purported type of mineral mining and processing based solely on the ultimate use of the processed minerals,” Van Cleve wrote in the complaint.
County Board members who voted for the ban said that frac sand mining is different than construction sand mining because it is so much larger in scale. They considered banning mines based on their total size — rather than what the sand is used for — but after the owners of large, local construction sand mines spoke out, the County Board opted for a ban based on the sand’s use.
Finally, frac sand is a crucial commodity in the production of domestic oil, and this local ban “unjustifiably discriminates and/or burdens the interstate flow in violation of the Commerce Clause of the United States Constitution,” Van Cleve continued in the complaint.
Winona County could have protected the environment without infringing on private property owners’ rights as much as this ban does, Van Cleve said. “All you have to do is look around at other jurisdictions and you can see that there are regulatory regimes in place that mitigate or even eliminate a lot of what are perceived to be the negative effects of mining,” he added.
All of the charges leveled in the plaintiffs’ complaint were raised by ban opponents and by dissenting County Board members Steve Jacob and Marcia Ward throughout 2016. Winona County Attorney Karin Sonneman was conscious of the potential for a lawsuit when she reviewed the proposed ban’s legality and recommended changes to boost its defensibility in court. In early memos to the County Board on the ban’s legality, Sonneman described it as likely to survive a legal challenge. In her last memo, in October, she wrote that, “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.]” Sonneman stood up for the ban and for her work to make it legally defensible before the board’s final vote. “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.
Sonneman is currently on medical leave recovering from a surgery. Assistant county attorneys in her office were not immediately available for comment on the lawsuit. Winona County Board Chair Jim Pomeroy declined to comment.
Sonneman did a good job reviewing the ordinance amendment, “and the county has a very good chance of successfully defending it,” said Land Stewardship Project Policy Program Organizer Johanna Rupprecht, who helped lead a citizen campaign for the ban. “The county absolutely did the right thing by passing the ban and not bowing to the threats of the industry,” she added.