Minnesota Supreme Court upholds Winona County ban on frac sand mining

In a long-awaited decision with the potential to shape the sand mine industry statewide, the Minnesota Supreme Court on Wednesday let stand a Winona County ban on industrial silica sand mining.

The ruling comes after a four-year legal battle between Winona County commissioners and Minnesota Sands, a local company that claimed the 2016 ban was an unconstitutional limitation on interstate commerce and a government taking of its property without compensation.

The seven-member court affirmed rulings by the state appeals court and district court that said Winona's ban was legal. Two justices dissented in full, and a third dissented on part of the ruling.

"We prevailed," said Winona County Commissioner Marie Kovecsi, one of three board members to approve the ban. She said that she first ran for office partly because of the sand mining issue.

"They were blasting one or two times a day, three or four times a week. A significant number of homes were being disturbed. My neighbor's window was broken after one of the blasts. It was disturbing to say the least," said Kovecsi.

"I'm just hoping that it ends here," she added.

Mike Zipko, a company spokesman, issued a statement Wednesday saying Minnesota Sands would review the court's ruling before deciding what to do next.

"We continue to believe this is an unfounded ban and violates the commerce clause of the U.S. Constitution," the statement said. "The ban is the wrong way for Winona County to try to address an issue that is far beyond their authority as a county government. We have never opposed reasonable regulations on land use, but this ordinance clearly goes too far."

The southeast Minnesota county was the first in the state to enact a ban on industrial silica sand mining, while allowing mining to continue for construction sand, a cheaper and less-pure material used on roadways and for other commercial uses. Silica sand is 95% quartz and consists of round, extremely hard granules that prop open cracks in shale rock, allowing the extraction of oil, gas and natural gas liquids.

The mined sand needs to be washed and processed to ensure consistent size and shape, which typically takes place at the mine itself. The process uses large volumes of water and chemicals known as flocculants. The leftover sand, along with the water and the chemicals, is then deposited back into the mine.

The case has been closely watched by other counties throughout a region of the state rich with silica sand deposits. Houston County, in the extreme southeast corner of the state, nearly enacted a ban before Winona County.

In the ruling written by Associate Justice Margaret Chutich, the high court rejected Minnesota Sands' contention that the ban violated the commerce clause because it was a limitation on interstate commerce or discriminated against an out-of-state business. The company argued that because there are no oil or natural gas wells in Minnesota that use frac sand, all industrial sand mined in Winona County was headed for fracking industry sites out of state — and that the prohibition was essentially an export ban.

The Supreme Court rejected that characterization, saying the ban doesn't allow industrial silica sand mining for in-state uses, such as the manufacture of countertops, glass and shingles.

Minnesota Sands also claimed the ban constituted a government taking of its property without compensation, a violation of the Fifth Amendment. The high court dismissed that claim for the same reasons provided by the district and appeals courts, saying the property interests that the company claimed were taken by the county "had not yet accrued." Minnesota Sands didn't have a functional permit, nor had it gone through the necessary environmental review that would have been required before it could start mining, the court said.

Associate Justice G. Barry Anderson dissented on both arguments, as did Chief Justice Lorie Skjerven Gildea. Justice Paul Thissen dissented from the majority's ruling with regard to the company's claims about a government taking.

The emergence of frac sand mining in Winona County nearly 10 years ago brought immediate questions from local residents, some of whom were close enough to the mines or the affiliated sand-washing stations to see and hear mining activities from their homes. A major sand-hauling route out of one mine had numerous trucks daily joining local Winona traffic.

The county first received three applications for permits to mine some of the rich silica deposits found in and near the Mississippi Valley city in 2011.

A 17-month grassroots campaign that used lawn signs, letters to the editor and sustained public comment at Winona County Board meetings led to the board's 3-2 vote in 2016 in favor of a ban, passed as an amendment to the local zoning ordinance.

"I don't know if I ever fully believed that we could do this, until we did it," said Johanna Rupprecht, local policy organizer for the Land Stewardship Project, a Minnesota nonprofit that advocates for sustainable land use and a principal driver of opposition to the sand mines. "It just goes to show the power of organizing. A lot of people contributed in a lot of different ways to get this passed."

The president and owner of Minnesota Sands, Richard Frick, filed suit against the county in 2017. A district court ruling upheld the ban, as did the Appeals Court in a 2-1 decision in 2018.

Rep. Chris Swedzinski, R-Marshall, the lead Republican in the House Energy and Climate Finance and Policy Division, called the court's ruling a chilling message to the business community.

"There are stringent rules in place to regulate aggregate mining that protect the environment while still allowing businesses and the economy to grow," Swedzinski said in a statement. "It is extremely disappointing that the Minnesota Supreme Court sided with environmental activists that singled out one sector of the aggregate industry and unilaterally shut them out of the economy."

Attorney Ed Walsh, who filed an amicus brief on the lawsuit while representing the Land Stewardship Project, called the Supreme Court's ruling a "big day."

"It's certainly been a long time coming," he said.

Matt McKinney • 612-217-1747