by CHRIS ROGERS
The Minnesota Supreme Court decided to take the case. In a lawsuit that challenges the constitutionality of Winona County’s ban on new frac sand mines, the high court announced last week that it will grant an appeal to the would-be frac sand mining company Minnesota Sands.
The Winona County Board passed the ban in 2016 on a 3-2 vote after a months-long citizen campaign that focused on the threat ban proponents said frac sand mining poses to local groundwater, surface water, and scenic beauty. The ban ordinance prohibits mining “industrial minerals” — most notably, frac sand — but allows the mining of “construction minerals” — including plain, old sand. In its lawsuit, Minnesota Sands argued that, in Winona County, there is no real difference between the two and that the ban violates the U.S. Constitution’s interstate commerce clause by outlawing sand mining for out-of-state use while allowing it for local use. Lawyers for Winona County countered that there is a substantive difference between frac sand and normal sand, and that the county was well within its rights to adopt an ordinance that protects citizens’ health and the environment.
Minnesota Sands lost in district court in 2017, when Winona County District Court Judge Mary Leahy ruled in favor of the county, and Minnesota Sands lost again this summer, when a 2-1 decision from a three-judge panel on the Minnesota Court of Appeals upheld Leahy’s ruling. The county ordinance is legal because it “even-handedly bans both in-state and out-of-state interests from mining all silica sand in Winona County,” Court of Appeals Judge Renee Worke wrote. One of the three judges, Judge Matthew Johnson, dissented, writing that, “In reality, Winona County silica sand is used both for ‘local construction purposes’ and for ‘industrial’ purposes.” The ban does violate the interstate commerce clause, he contended.
Now it is up to the Minnesota Supreme Court to decide.
The Supreme Court did not have to take this case. The high court could have denied Minnesota Sands’ petition and let the appellate court ruling stand, and the county’s attorney, Jay Squires, urged the Supreme Court to do just that. The fact that the Supreme Court agreed to take the case suggests that at least some of the justices feel it raises interesting questions that deserve further review.
Squires was not available for comment. Attorneys for Minnesota Sands and its owner Rick Frick were also unavailable for comment, but the company did send a written statement. “Minnesota Sands is pleased the state’s highest court decided to consider our appeal because we continue to believe the ban is unconstitutional and damaging to landowners’ rights and to business,” the statement read in part.
“It’s too bad,” said Land Stewardship Policy Organizer Johanna Rupprecht, who helped organize the campaign to pass the ban. “Obviously people really want a resolution to this. It’s too bad the frac sand industry keeps dragging this out.” Rupprecht said she was optimistic that the Supreme Court would, at the end of the day, agree with lower courts and uphold the ban. She added of the argument that there is no difference between frac sand mining and other kinds of sand mining, “If that were true, we would never be having this conversation.” On a positive note, this case may attract more attention from people across the state to the way citizens in Winona County organized to protect their environment, and it may act as example for how they could do similar things elsewhere, Rupprecht stated.
In their petition to the Supreme Court, attorneys for Minnesota Sands also wrote about the potential for other counties to follow Winona County’s example. In the company’s recent statement, a Minnesota Sands spokesperson wrote, “If the ban is allowed to stay in place, it will not only do further harm to Winona County landowners and businesses, it also threatens the same harm to landowners and businesses across Minnesota and across the entire United States.”
The Minnesota Sands case marks the first time a local civil lawsuit has reached the Minnesota Supreme Court since 2015, when the Minnesota Supreme Court dismissed a case challenging the city of Winona’s 30-percent rule.
The Minnesota Sands case could be slated for oral argument in 2019, but there is no set timetable for when arguments will be held or how long the case may take to be resolved. The 30-percent rule case was before the Supreme Court for around 15 months before the court issued its ruling.