Catching Up: Meteor Timber’s $75M frac sand project still mired in legal challenges

November 27, 2018 GMT

A Monroe County judge is scheduled to rule this week on whether to advance a legal challenge to the Wisconsin Department of Natural Resources’ authority regarding a controversial frac sand operation.

Last year the DNR granted Meteor Timber permission to fill 16.25 acres of high-grade wetlands in order to build a processing and loading facility to handle frac sand from mines the Georgia-based investment company planned to open on nearby land.

After a challenge by the Ho-Chunk Nation and Clean Wisconsin, Administrative Law Judge Eric Defort threw out the permit, determining that the DNR’s approval process was flawed.

Meteor appealed, and DNR Secretary Dan Meyer agreed to review the judge’s ruling.

Clean Wisconsin and the Ho-Chunk then sued the DNR, challenging the legality of a rule that allows the agency to review and reverse a judge’s ruling.

Attorneys for the state have asked the court to dismiss the suit on the grounds that the courts can’t decide the case until the DNR has made a decision and that unless Meyer reverses the ALJ’s ruling, Clean Wisconsin and the Ho-Chunk have not suffered any harm.

A DNR attorney is still in the process of reviewing DeFort’s ruling, and the agency has not provided a timeline for a decision.

Construction is on hold pending the outcome of the DNR review.

That review will continue even if Ziegler allows the case to move forward. The parties will then make arguments as to whether the review should be suspended during the court proceedings.

Should the court throw out the challenge, the plaintiffs would have the opportunity to challenge whatever decision Meyer makes.

“It’s really a question of when and where — rather than if — we’re going to get a hearing,” said Evan Feinauer, staff attorney for Clean Wisconsin.

The $75 million project has been politically charged.

Meteor offered to restore and preserve more than 640 acres of other lands near the 752-acre site, which would serve two nearby mines on land the company acquired in the 2014 purchase of nearly 50,000 acres of Wisconsin forest.

But DNR staff determined those mitigation efforts were unlikely to fully compensate for the loss of “exceptional quality” white pine and red maple swamp, which is considered an imperiled habitat.

Meteor also threatened that the current landowner would cut down all of the trees on the site if the permit is not granted.

Former DNR employees testified during the five-day hearings that the permit decision was made in spite of staff findings.

Republican lawmakers in the state Assembly twice this spring passed legislation that would have allowed Meteor to proceed with the project even while the appeal was pending. Both bills died when the Senate declined to take them up.