Supreme Court arguments over frac sand ban


(1/28/2019)

by CHRIS ROGERS

All sides have now staked out their arguments in a Minnesota Supreme Court case challenging the constitutionality of Winona County’s ban on new frac sand mines. The final written arguments were filed this month, and the court is currently scheduling an oral argument date — possibly this spring — before it makes a ruling. Whether plain-old sand and frac sand are the same thing remains at the heart of the case.

Winona County passed the ban in 2016 following a citizen campaign led by the Land Stewardship Project (LSP). Would-be frac sand mining company Minnesota Sands filed suit in 2017. It lost in district court and lost on a 2-1 vote in appellate court, and last fall, the Supreme Court opted to hear the case. Now, a California-based libertarian foundation, a Minnesota mining association, LSP, and the League of Minnesota Cities (LMC) — which represents nearly all of Minnesota city governments — have also weighed in on the case, offering amicus briefs to help inform the high court’s decision.

“…More is at stake than the parties’ individual interests,” LMC attorney Susan Naughton wrote in her brief. “In resolving this appeal, this court will adopt a rule of law that will apply statewide and will directly impact cities’ authority to adopt zoning regulations to protect the public and the environment.” Naughton urged the court to uphold the ban, arguing that by not giving deference to the county’s ordinance, the court would weaken the separation of powers between legislative and judicial branches of government and make the courts akin to a zoning board of appeals. “The ordinance amendment is entitled to a presumption of constitutionality, and Minnesota Sands bears a heavy burden in challenging it here,” Naughton stated.

Conversely, attorneys for Minnesota Sands wrote, “The federal constitution creates a nationwide free-trade zone. Under the Commerce Clause, state and local governments may not ban exports of goods produced within their boundaries. Unfortunately, Winona County has done just that … The county bans mining silica sand for uses that occur in other states, while exempting from the ban a long list of uses that occur locally.”

The county’s ordinance prohibits mining of “industrial minerals” such as silica sand used for hydraulic fracturing or fracking. It allows mining of “construction minerals” for “local construction purposes,” such as sand. Frac sand and construction sand may be mined from the same sand deposits. Often, it is the same sand, except that frac sand is processed to sort out only very small particles of sand. Arguing that the sand is the same and the mining process can be the same, the company’s attorneys contend that the county’s ban unfairly discriminates against an out-of-state use of sand while allowing local uses of sand. The U.S. Constitution’s interstate commerce clause — which prohibits state and local governments from discriminating against out-of-state businesses — does not allow that, Minnesota Sands’ lawyers contend. “Winona County allows silica sand to be mined for ‘local’ uses, but bans mining the very same sand for export,” they wrote.

“Although the raw material of silica sand can be used for a variety of purposes, the methods by which industrial silica sand is mined, processed, and transported is fundamentally different from that of small-scale construction mining operations that rely on a variety of sands and gravel for uses in animal bedding and construction fill,” attorneys for LSP wrote in their amicus brief. They contend that the large scale of frac sand mining, the continuous mining, and the use of chemical flocculants — including polyacrylamide — in the processing of frac sand make it fundamentally different from plain-old sand mining and more dangerous to local water quality and health. The county’s attorneys highlighted some of the same differences but did not explicitly state that construction sand and frac sand are different. Instead, they endeavored to use Minnesota Sands’ own testimony against itself. Pointing to Minnesota Sands’ owner Rick Frick testimony that a slow-down in the frac sand market was part of the reason he had not already applied for a mining permit before the ban, the county’s attorneys wrote that there are different markets for frac sand and construction sand. Because the two types of sand mining are not in competition in the same market, they argued, “Industrial sand and construction sand are not competitors and therefore the commerce clause does not apply.”

Minnesota Sands’ attorneys especially leaned the county’s use of the word “local” in defining “construction minerals” as obvious evidence of anti-interstate-commerce discrimination. County officials contended that “local” could extend to Wisconsin construction markets and does not restrict interstate commerce.

Attorneys’ scheduling filings suggest that the Minnesota Supreme Court will likely hear oral arguments in the case this year, potentially as early as this spring. After oral arguments, there is no deadline for the Supreme Court to make a decision.

Chris@winonapost.com

 

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