Ed Walsh: Winona County has solid legal authority to ban frac-sand mining

Winona Daily News- By Ed Walsh, La Crescent Mar 15, 2016

My wife and I fell in love with the Upper Mississippi River Valley during our first visit in 1972. After many more wonderful visits and family vacations to the valley, in 1996 we were privileged to be able to purchase a beautiful farm in Winona County. Although our primary home and my law practice were then located in suburban Chicago, we always knew that we would ultimately transition our lives to Winona County, and we proudly did so in 2013.

Since 1996, in anticipation of spending the rest of our lives in one of the most beautiful geographic regions in the world, we embarked on a mission of land stewardship. We reforested, by direct seeding, more than 100 acres of invasive weed-infested blufftop land into vibrant walnut and oak forests. We transformed unused pasture land into native plant, prairie grass and wildflower fields. As a result, we have seen a massive proliferation of butterflies, song birds, owls, hawks and, just last year, a pair of nesting American bald eagles who produced three chicks. They have returned this spring.

With this historical background of stewardship and gratitude for the splendor of the Upper Mississippi Valley, I have taken a keen personal and legal interest in the recent growing controversy over the issue of frac sand mining in Winona County. For the past 38 years my law firm and I have represented two suburban Chicago municipalities; one has a population exceeding the size of Winona County. This experience and defending our municipal clients in numerous complex zoning litigation lawsuits has allowed me to confidently understand that the Winona County commissioners have the solid legal authority to completely ban frac sand mining operations within the county.

This past week I was pleased and reassured to read the legal opinion of the Winona County Attorney on this issue. She advised the county commissioners that they possess the established legal authority to prohibit frac sand mining operations in the county. I understand, however, that there are, perhaps, some commissioners who would prefer to regulate, rather than prohibit, frac sand mining. For numerous legal, health, safety and economic reasons, regulation, rather than a complete prohibition, would not be in the best interests of the county or its residents.

Minnesota state statutes and case law from Minnesota, other states, and federal courts strongly support the opinion of our county attorney and indicate that courts would uphold the authority of Winona County to completely ban frac sand mining operations through zoning. Sadly, however, opponents of a zoning ban often, without legal knowledge, experience or authority, use the “threat of litigation” against the county as an argument against a legal ban.

The hypothetical and meritless “threat of litigation” should not discourage the commissioners from moving forward with an ordinance prohibiting frac sand mining. In arguing against legal zoning ordinance bans, proponents of frac sand mining speciously misconstrue the law to suggest that ban ordinances would violate constitutional private property rights of property owners affected by the ban and be struck down by courts. All of these assertions are misleading, inaccurate and legally unsound.

Furthermore, in the unlikely event the county is sued, it is a member of the Minnesota Counties Intergovernmental Trust, and the MCIT would provide the County with skilled and experienced attorneys to defend the litigation, at no significant expense or risk to the county.

On the contrary, in the event the county elects to allow and “regulate” frac sand mining, the monetary and personnel expense to the county will be significant. Regulation will require the county to hire additional employees to be sure the mines are complying with county zoning regulations. Additionally, frac sand mining operations will generate significant increased truck traffic. The Environmental Assessment Worksheets for the proposed Yoder and Dabelstein mines in Winona County indicate that mining activities from those two operations alone are expected to produce up to 1,200 truck trips per day on county roads. The resulting significant wear and tear on county roads and bridges will necessitate costly increased maintenance on our already stressed roadway system.

There are many additional health, safety and environmental reasons why the commissioners should completely ban frac sand mining. By doing so, our elected commissioners would protect and promote the health and safety of their constituents and preserve our geographic jewel.

Sadly, however, opponents of a zoning ban often, without legal knowledge, experience or authority, use the “threat of litigation” against the county as an argument against a legal ban.

Full article here