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Minnesota Supreme Court sides with Winona County on frac-sand ban

The Minnesota Supreme Court ruled Wednesday that Winona County did not violate the Commerce Clause of the U.S. Constitution with its ban on frac-sand mining.

Winona County changed its comprehensive zoning ordinance in 2016 to prohibit “industrial mineral operations.” “Construction materials” were still able to be extracted, but a conditional-use permit was required.

Minnesota Sands, LLC, filed a lawsuit against the county about these limitations. When the lower courts did not rule in its favor, the company requested the Minnesota Supreme Court look at the case, leading to the court affirming with the decision of the court of appeals.

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.

According to a statement from the company, “Minnesota Sands is disappointed in the decision made by the court and the impact it will have on other regulated industries across our state. The company agrees with the Court’s dissenting justices who found that ‘Winona County’s ordinance erects a facially discriminatory ban on silica sand mining when intended for hydraulic fracturing that is per se invalid.’ We will review the decision before making any additional decisions related to this matter.”

The statement says that the company still sees the ban as a violation of the Commerce Clause and that it is “unfounded.”

The company says the ban limits businesses like it from being a part of the national marketplace, forcing it them to stay local.

“Minnesota has some of the most stringent environmental review procedures and mining laws in the country. The mining industry has embraced the technologies that enable sustainable mining,” the company’s statement said. “Because of the ban, Minnesota Sands continues to be prevented from implementing its plan for small-scale, mobile sand quarries with minimal environmental impact and has been unfairly prevented from selling their only product.”

Johanna Rupprecht, a Land Stewardship Project organizer, helped create a 17-month grassroots campaign that supported the original ban in the county.

Rupprecht was very pleased with the Minnesota Supreme Court’s decision.

“It’s been a long time coming waiting for this result,” she said. “But it’s great to see that the Winona County ban has finally been upheld by the Supreme Court. A lot of people worked very hard to get that ban passed. And it was frustrating to see different sand industry (entities) continually trying to take that victory away. But it’s really great to know that the right of the county to do the right thing and protect the community has finally been upheld.”

The Land Stewardship Project created the campaign because of the impact frac-sand mining has had on other rural communities. Rupprecht said that industrialization, pollution and contamination of water had been witnessed.

She said that the land and communities were greatly harmed.

“People saw that happening and didn’t want that to happen here in Winona County,” she said.

The people involved in the campaign wanted to limit the industry from ever coming into Winona County with one complete ban.

Rupprecht hopes other counties will feel empowered by this situation and will pass similar bans on industries they believe are harmful.

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.

The ordinance does not violate the federal Commerce Clause “because it does not favor in-state interests over out-of-state interests,” the court of 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.

Minnesota Sands has cited 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 had 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., claimed to have rights to another 1,700 acres of land though he has yet to mine any sand.

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