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Challenge to Winona County's frac sand ban to be heard by state Supreme Court next month

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Frac Sand

Stockpiles of silica sand sit at the at Modern Transport Rail loading terminal in Winona. Minnesota Sands has argued the county’s ban on frac sand mining is unconstitutional because it singles out sand used for industrial purposes, while allowing mining for local construction uses.

ST. PAUL — The Minnesota Supreme Court will hear oral arguments on the legality of Winona County’s ban on frac sand mining on Wednesday, April 10, at the University of Minnesota Law School.

The oral arguments are scheduled to begin at 9:05 a.m.

Minnesota Sands has argued the county’s ban is unconstitutional because it singles out sand used for industrial purposes while allowing mining for local construction uses. The sand is used to fracture shale rock in order to extract oil and natural gas.

The Winona County Board passed the ban in November 2016. The board has allowed mining to continue for construction sand, a cheaper, less pure material used on roadways and for other commercial purposes.

A Minnesota Court of Appeals rejected a lawsuit filed by Minnesota Sands and a group of landowners in July.

The ordinance does not violate the federal Commerce Clause “because it does not favor in-state interests over out-of-state interests,” the appeals panel wrote. “On the contrary, it even-handedly bans all industrial mineral mining, which includes silica-sand mining, within the county.”

The court further ruled that the ordinance does not constitute a “taking” because Minnesota Sands did not apply for conditional use permits in the years leading up to its adoption.

The decision affirmed a ruling by Winona County Judge Mary Leahy issued in November.

In a July statement, Minnesota Sands said a dissenting opinion from Judge Matthew Johnson recognizes its concerns about the discriminatory nature of the ban.

Johnson wrote that the court should look at the “realities of the marketplace” when evaluating the ban. Because Minnesota doesn’t have significant oil and gas reserves, there is no in-state fracking.

“The ordinance effectively allows silica sand to be mined and sold to local consumers but does not allow it to be mined and sold to consumers in other states,” he wrote. “Thus, the ordinance suppresses interstate commerce.”

According to court documents, Minnesota Sands has mining leases to 1,946 acres of land in Winona County that contain silica sand worth between $3.6 and $5.8 billion. Company president Rick Frick of Dakota, Minn., claims to have rights to another 1,700 acres of land though he has yet to mine any sand.

Winona County Administrator Ken Fritz said in July the county’s legal costs have largely been covered by the Minnesota Counties Insurance Trust.


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