Lawsuit challenges Winona County frac sand ban

March 22, 2017 GMT

WINONA — No one seems surprised.

A group called Southeast Minnesota Property Owners and Roger Dabelstein, a resident of Saratoga Township in Winona County, have filed a lawsuit in the Third Judicial District Court against Winona County over its frac sand ban.

On Nov. 22, the Winona County Board of Commissioners voted 3-2 to enact a ban of industrial mining of silica sand for the purpose of hydraulic fracturing. The ban ended mining, transporting and processing silica sand for the purpose of fracking but allowed those activities for other uses of silica sand such as cattle bedding or construction.

Steve Jacob

Commissioner Steve Jacob, who often argued a ban could open the county up for possible litigation, said he was not surprised to see the suit brought against the county.

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“I agreed with the criteria that they brought forth in the lawsuit,” Jacob said, though he cautioned that he and the rest of the county board were advised not to go into the specifics of the case.

Johanna Rupprecht

While Jacob cannot discuss details, Johanna Rupprecht, of the Land Stewardship Project, is under no order of silence. Rupprecht, who provided grass-roots support that helped enact the ban, said the lawsuit contains the same arguments the frac sand industry was making before the ban was passed.

“We view this lawsuit as an attack by outside corporate interests on Winona County’s democratic decision, and it’s outrageous,” she said.

Rupprecht said the process of enacting the ban showed the widespread public support of ending frac sand mining in Winona County. Whether looking at public comments made at hearings, or letters and emails sent to the county, the vast majority of people in the county supported the ban.

Furthermore, the county attorney’s office performed its due diligence, she said, to meet the standard for a ban.

That did not stop the lawsuit from coming forth, though, claiming the ban violates both the Minnesota and U.S. Constitution, particularly the Commerce Clause, and the Fifth and Fourteenth amendments regarding due process, said Gary Van Cleve, an attorney for Larkin Hoffman Daly & Lindgren, the Minneapolis-based law firm hired by the plaintiffs.

“They’re banning certain kinds of sand mining, but other kinds are OK,” Van Cleve said. “As long as the end use is OK. There’s no rational basis for that.”

Allowing some kinds of silica sand mining but not others does not provide equal protection, he said. Comments from supporters talked about stopping the process of fracking to remove oil and natural gas from shale rock. However, fracking does not occur in Winona County.

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“There’s definitely been a policy choice made that people have issue with the hydraulic fracturing process,” Van Cleve said. “And people can have a problem with that, but this isn’t the place to do it.”

A better option, he said, would have been to regulate the industry. That is an option the county -- particularly the county attorney and the planning commission -- considered. That option was passed over in favor of a ban.

“The ban was the only way to protect the county,” Rupprecht said. That protection extends to the land, water, health, safety and economy of Winona County. “Of course, the industry and their attorney will argue that they can regulate it.”

In fact, as the ban was crafted, Rupprecht said, many of the arguments made in the lawsuit were answered ahead of time by the county attorney and her staff. “None of these arguments are really new,” she said.

Despite the fact there is no frac sand mining in Winona County — nor was there before the ban took effect — the county will have to pay to defend the ban against the industry, Jacob said.

“This is something that wasn’t happening; this is something that isn’t happening,” the commissioner said. “I wanted to treat all sand the same and then limit the volume.”

“I think that many other jurisdictions have been able to tailor regulations for these kinds of mining operations so they can use their land and also look out for health, safety and welfare of their citizens,” Van Cleve said. “This ban is a misguided effort in doing that.”

In the meantime, the ban remains in effect, Van Cleve said. Going forward, the case likely will be submitted for summary judgment, which means written arguments, affidavits and exhibits being filed during the next few months followed by a court hearing where the attorneys would present their cases.

“I would think it will take several months to get it before the court on a summary judgment motion,” he said.

In the meantime, Van Cleve and his clients will wait. “We felt very comfortable in bringing this action.”