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County 'vindicated' in sand mine appeal (06/18/2014)
By Chris Rogers
In a ruling issued Monday, Minnesota Court of Appeals judges upheld the Winona County Board's decision to permit the county's first rural frac sand mine. The 19-acre Nisbit mine has sparked heated debate for over two years, and, after the mine was approved in a 3-2 vote last summer, citizens challenged the decision in court. The state court sided with the county.

In an unusual step, the Court of Appeals published its opinion. Published opinions are more in-depth than other rulings, and will be added to law libraries around the state as precedents for future cases. Per state law, "the Court of Appeals issues a published opinion only in the most important and complex cases," explains the court's website.

Attorneys on both sides of the case agreed that the ruling reinforces the judicial system's deference to local decision-making authority. Attorney for the county in the case, Jay Squires, said he believed the court may have decided to publish the opinion because it sets a higher bar for overturning decisions to grant permits. According to the standard used by the court, only if the county's decision was "an abuse of discretion" can it be overturned.

Attorney for the appellants, James Peters, had different ideas about why the court may have published the case, but agreed that since the Court of Appeals started directly taking permit appeals as opposed to district courts rulings overturning local government's decisions have been exceedingly rare.

"It validates all the hard work that everybody did on that application: planning staff, the Planning Commission, the applicant, and the County Board," said County Board Chair Marcia Ward of the ruling.

Opponents of the mine have argued that it ought to be included in an in-depth Environmental Impact Statement (EIS) for a cluster of nearby mines proposed by Minnesota Sands. State environmental review rules require governments to consider the sum of the environmental impacts, or the cumulative effects, caused by separate projects in a single area. Local opponents, the Department of Natural Resources, and the Minnesota Pollution Control Agency argued that the review of the Nisbit mine should include cumulative effects of the proposed Minnesota Sands mines.

The court ruled that substantial evidence backed the County Board's conclusion "that the potential cumulative effect of this small and limited-duration project is minimal." Judges also affirmed the county's argument that the development of the Minnesota Sands mines could not be reliably predicted and ruled that the appellants had failed to prove that the Minnesota Sands projects were "reasonably likely to occur" and could "reasonably be expected to affect the same environmental resources."

"The county's argument on that is just not really in line with the reality of the situation, and unfortunately the court bought into that," said Land Stewardship Project (LSP) organizer Johanna Rupprecht of the likelihood of Minnesota Sands' proposals. LSP helped organize opponents of the mine.

"I understand cumulative effects, but I can't ask one single, 19-acre application to control everything else that's going on [around it,]" Ward commented said of the Nisbit mine, one of the smallest in the region.

For many months, the fate of the Minnesota Sands proposals have remained in limbo because the company had not completed an EIS for the project. However, in a letter to state environmental officials last month, Minnesota Sands stated that it does intend to complete an EIS and seek approval for mines at 11 properties in Winona and Fillmore counties. 


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