Judge's ruling on Winona County ban of frac sand mining stirs interest

A recent court decision affirming Winona County's year-old ban on frac sand mining, the first of its kind in the state, has stirred interest in neighboring counties, where efforts to enact similar bans have so far foundered.

Winona County District Judge Mary Leahy ruled Nov. 17 that the county was within its authority when it created the ban, dismissing claims from the mining company, Minnesota Sands, that the ban violated its constitutional rights. The company had argued the ban was unconstitutional because it targeted industrial silica sand mining while allowing mining of sand for other purposes.

A spokesman for Minnesota Sands called the ruling disappointing. "We … are reviewing and evaluating our next steps," spokesman Mike Zipko said in a prepared statement. "We continue to believe the ban unfairly takes away the legal rights of landowners and their tenants."

The company and several private property owners who were co-plaintiffs in the suit have 60 days from the date of the ruling to appeal.

One of the plaintiffs' attorneys, Gary Van Cleve of Minneapolis, said his clients are considering an appeal.

The ruling drew several frac-sand mining opponents to the Houston County Board meeting last week, said Commissioner Teresa Walter.

"We do expect conversation," said Walter. The county already has a strong ordinance regulating frac sand mining, Walter said, but at a citizen's request, the County Board will now review the Winona decision and perhaps direct the county attorney to meet with Winona officials to learn more, Walter said.

Commissioner Justin Zmyewski said he expects the Winona ruling to set off discussions in Houston County and elsewhere about implementing a ban.

In early 2015, Houston County nearly became the first in the state to ban frac sand mining, with the commissioners reversing themselves at the last minute and rejecting the ban. The public hearing was raucous, and several citizens had to be forcibly removed.

"The fact of the matter is, I've been a big advocate for severely regulating if not banning frac sand in Houston County," said Zmyewski.

Zmyewski and Walter were both on the board at the time of the vote, but the other three commissioners were voted out and replaced. Zmyewski said he thinks the new board would be more likely to pass a ban.

The owner of Minnesota Sands had proposed mining in Houston County, but no actions have been taken lately, said Zmyewski.

Commissioner Fred Arnold said in an e-mail that nothing will happen until the appeals process plays out. "We, along with our attorney, will closely monitor the situation as it evolves," he wrote.

Commissioner Jack Miller said some residents "are zealous about enacting a similar ordinance in Houston County" and that he plans to meet with the county attorney and zoning administrator before making a decision.

In neighboring Fillmore County, an ordinance that restricts industrial mining still has broad public support, said Commissioner Duane Bakke.

The ordinance limits the mining operation to 50 acres with no more than five operations in the county at once. There's one mine so far with very little activity, Bakke said. The ordinance includes route agreements, a ban on on-site processing, washing and use of chemicals and a daily load limit.

Minnesota Sands would like to build a site in Fillmore County, said Bakke, but he said he feels confident that the existing ordinance protects the county's environment and limits damage to local roads.

Matt McKinney • 612-217-1747