Appeals Court upholds Winona County ban on frac sand mining

Winona County narrowly won another legal victory Monday in its effort to outlaw frac sand mining.

In a split decision, a three-judge panel of the Minnesota Court of Appeals upheld a lower-court ruling that found the county's two-year-old ban was neither an unconstitutional limitation on interstate commerce nor a governmental "taking" without compensation.

The Winona County Board was the first in the state to adopt a countywide ban to address the mining of silica sand, a key component used to fracture shale rock to extract oil and natural gas. It has, however, allowed mining to continue for construction sand, a cheaper and less-pure material that's used on roadways and for other commercial purposes.

Minnesota Sands, a mining company that had acquired mineral rights to areas in the county rich with silica sand, sued to overturn the measure, arguing that it discriminates against its business. Winona District Judge Mary Leahy ruled for the county in November and dismissed the suit, prompting the company's appeal.

Judge Renee L. Worke wrote the 17-page opinion for the Minnesota Court of Appeals, joined by Judge Lucinda E. Jesson. Judge Matthew E. Johnson wrote a 26-page dissent in which he agreed that the county's ordinance was not a "total" regulatory taking of a private property owner's rights, but largely disagreed with the majority on every other point.

"A county ordinance that even-handedly bans all industrial-mineral mining, including silica-sand mining, within the county does not discriminate against interstate commerce," Worke wrote in the opinion issued Monday.

Minnesota Sands has 30 days to appeal to the Minnesota Supreme Court, said Ken Fritz, Winona County administrator.

"We're obviously happy that the county attorney's recommendation and the County Board's approved ordinance was upheld, but other than that, it's business as usual," Fritz said.

Minnesota Sands said in a statement that it was "extremely disappointed" by the ruling and is reviewing options "that could include appealing this decision." It called the county's ban "wrong," adding that "the dissenting opinion clearly recognizes our concerns and the impacts of the county's actions."

What happens next is being watched closely by other counties, including neighboring Houston County, which nearly enacted a ban before Winona did so. Houston County Commissioner Justin Zmyewski said Monday that he had pushed hard for a ban but was warned it would never hold up in court.

"So this is reaffirming that yeah, we actually can" pass a ban on frac sand mining, Zmyewski said. He said the issue has gone dormant in Houston County but may be revisited.

Meanwhile, members of the Land Stewardship Project, a nonprofit founded in 1982 to promote sustainable agriculture, praised the appeals court ruling.

Johanna Rupprecht, the group's policy organizer, said the courts have now upheld the county's use of its zoning authority to ban frac sand mining.

"I hope that should be pretty inspiring to other communities that are dealing with things like this, too," she said.

Minnesota Sands had argued to the appeals judges that the county's ordinance violates the Commerce Clause of the U.S. Constitution because it benefits in-state operations that are free to mine silica sand for other uses while forbidding those that sell the sand for out-of-state fracking operations.

But the appellate decision rejected that argument, finding that the ordinance "bans all industrial mineral mining, which includes silica-sand mining, within the county."

"We have no reason to believe that the ordinance benefits in-state interests and burdens those out-of-state," Worke wrote.

"Minnesota Sands has no compensable property interest, which ends our analysis," Worke wrote.

In his dissent, Johnson wrote that "the county's zoning ordinance effectively allows the mining of silica sand for some uses, which are common in the Winona County area, but prohibits the mining of silica sand for other uses, which occur solely outside the state of Minnesota."

Minnesota Sands argued that the ordinance is therefore discriminatory.

"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," Johnson wrote.

"Thus, the ordinance suppresses interstate commerce, to the detriment of (among others) consumers of silica sand in other states, but the ordinance preserves local commerce, to the benefit of local consumers of silica sand, who are insulated from the effects of unrestricted trade in silica sand."