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Houston sand mine appeal denied (06/25/2014)
By Chris Rogers
Opponents unsuccessfully sought to block the renewal of a permit for a Houston County sand mine that has been in operation for more than two decades with a court order on Monday. A judge denied their request for a court order late Monday afternoon, and on Tuesday morning the Houston County Board voted 3-2 to renew a permit for the mine.

The Erickson mine has operated as a construction sand pit for over 20 years and the renewal allows it to continue selling up to 10,000 cubic yards of construction sand per year. However, until recently, a proposal was on the table to mine more than ten times as much sand at the site for use in the hydraulic fracturing process to harvest oil and natural gas in other parts of the country. Mine owner Tracie Erickson told Houston County officials those plans have been scrapped, but some citizens are skeptical.

The Erickson mine was one of 11 frac sand mines proposed by Minnesota Sands. Those projects have remained in limbo for over a year as Minnesota Sands has "dragged its feet" to quote one Houston County official in submitting a combined Environmental Impact Statement (EIS) for the group of proposed mines to the Minnesota Environmental Quality Board (EQB). The Erickson mine was in limbo with the other ten proposals until last week, when the EQB released the Erickson mine from the EIS requirement after Erickson testified that he had dissolved his business relationship with Minnesota Sands and was no longer pursuing a large-scale mining operation.

Even before he was officially freed from the state environmental review, Erickson had sought permission from the county to continue the comparatively modest, previously permitted construction sand mining operation at the site. Last November, he filed a request for renewal of that permit, but the county did not act on that request before the permit expired this January. In February, Erickson again requested the renewal of the permit. According to Frank, that February request was what the County Board acted on yesterday. The renewal is, effectively, a retroactive one. Frank stated that because a state statute that requires local governments to take action on such a permit request within 120 days, the county was under the gun to act on the permit this week or the request would be automatically approved.

Commissioner Justin Zmyewski, who voted against the permit renewal, said that the 120 day "clock" had not officially started because the site was still subject to the EQB's authority, not the county's, when Erickson filed his requests for renewal. "In my eyes he handed the paperwork to the wrong agency," Zmyewski said.

Appearing before the Houston County Planning Commission on behalf of Erickson last month, Winona attorney Mark Merchelwitz argued that because the permit request was for construction sand, not frac sand, and because it was a renewal of a previously existing permit, it should never have been subject to the EQB.

From "clerical errors" on the permit application to another court ruling on the legality of the operation that is still pending, "there were a lot of loose ends I would have liked to have seen tied up," Zmyweski said when asked why he voted against the permit renewal. He said that the site's operation plan for the construction sand mine that was identical to the proposed 2.7 million cubic yard frac sand operation, and commented that the county lacks the personnel to ensure that the conditions of the permit are met.

Other disputed issues with the Erickson mine were aired in court on Monday. Urging Houston County District Court Judge Robert Birnbaum to block the permit renewal, Winona attorney Karl Sonneman argued that the permit cannot be renewed because it already expired in January.

Sonneman, who represented Houston County citizens opposed to the mine, also noted that the area proposed in the latest permit application was a fraction of the original 80 acres permitted in 1992. He likened the shrinking of the mine site to subdividing the permit.

The attorney for the county, Jay Squires, focused on questions of the court's authority. The specific court order Sonneman sought a writ of mandamus can only be issued when the law is very clear, in cases that are "not subject to any reasonable controversy," Squires stated. "Certainly there is a reasonable controversy in this case." Besides, Squires argued, the petitioners seeking the writ have to show that they would suffer specific injuries because of the mine and "there are no facts" to support such a claim.

Squires also argued that there was no language within the Houston County Zoning Ordinance that suggested any prohibition against renewing an existing permit for a smaller parcel of land within the original permit area.

For his part, Judge Birnbaum also questioned the appropriateness of a writ of mandamus, focusing on the requirement that the petitioners have no other legal options. He suggested that the petitioners might be able to file for another type of court order, an injunction, to stop the mine after the issuance of the permit. In his official order, Birnbaum cited that argument and Squires' points as his rationale for denying the writ.

There are still legal options available for the concerned citizens. They could seek an injunction or appeal the decision to the Court of Appeals. A pending judge's ruling, which is expected to clarify whether the ruling in Erickson's 2012 suit prohibits any sand mining at the site, could also affect the future of the mine. 


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