By Eric Freedman
The Wisconsin Court of Appeals has upheld Trempealeau County’s rejection of a proposed silica sand mining operation, finding sufficient evidence to support denial of a permit for the project.
The three-judge panel unanimously ruled that the county’s Environmental & Land Use Committee acted legally when it rejected a conditional use permit application from AllEnergy Corp and AllEnergy Silica, Arcadia.
Although the Wisconsin Department of Natural Resources issued state permits to AllEnergy to mine sand for use in fracking, the county committee’s “general zoning authority and the DNR’s permitting authority are distinct powers that do not conflict. AllEnergy needed both approvals to proceed with the mine,” the court said.
A further appeal is possible.
The 265-acre site is in an area zoned for agriculture.
When AllEnergy applied for the permit in 2013, the county hired an engineering company to review its application.
The committee then held a public hearing where AllEnergy representatives made a presentation and county residents were allowed to comment. The committee also considered written comments, the court said.
“While those in favor of the project principally signaled their support through form letters with little or no further comment, the vast majority of those who attended the meeting and offered comments were opposed to granting the permit,” the decision said.
Objections included the potential impact on seasonal wetlands where waterfowl breed and on Trout Run Creek, a class II trout stream.
“Many individuals noted that with so many sand mines operating in Trempealeau County, the aesthetic character of the area was changing such that there was a significant risk to one of the area’s most attractive attributes, its natural scenic beauty,” the court said.
The court said, “AllEnergy does not dispute that the proposed mine would affect wetlands in and around the mine site” but noted that the company planned to buy wetland mitigation credits to offset such adverse impacts.
According to the decision, committee members cited four major reasons for denying the permit under the county’s zoning ordinance:
- An incomplete application.
- Environmental concerns
- “Changes to the landscape and adverse effects on wildlife and recreational opportunities to residents and tourists”
- Concerns about health, local culture and social conditions.
AllEnergy is considering asking the state Supreme Court to review the ruling, said Gary Van Cleve, a lawyer in Minneapolis who represents the company.
“The issue that really concerns me is there doesn’t appear to be much, if any, demand imposed on the local decision-making body to have substantial evidence in the record to support the denial,” Van Cleve said.
For example, he said the Court of Appeals cited a comment at the public hearing where a resident said that hanging laundry outside near a sand mining operation “results in that laundry being dirtier. There needs to be a little more than anecdotal types of declarations by people opposed to the project to reach a substantial evidence level.”
Van Cleve said, “We had a whole panoply of scientific evidence that was accepted by the DNR in its findings, and it concluded no significant environmental harm” if the sand mining operated as the company proposed.
A lawyer for Trempealeau County, Aaron Graf of Madison, said, there are similar cases pending around the state.
“Essentially, most of the time a county makes a decision on one of the frac sand issued it’s sued by the company or by the citizens,” Graf said. “A large majority of the time they get sued.”
And as in this case, the courts generally uphold the local action because “under Wisconsin law, there’s a good deal of deference given to the county or town body, whichever is making the decision,” he said.
The first thing I will tell you is the history of this application from my perspective. I was the Chairman of the Environmental Land Use Committee, for several years and at the time that this application had its Public Hearing. Trempealeau County had put into place a moratorium for a year, but this application was on the schedule before that. When the hearing was held, things went well, in addition to the rules and regulations of the County Ordinance, the committee added 40 more conditions after many hours of discussion. One of them being an air monitoring system that has never been surpassed for safety, and at the expense of the mine. While no applicant had ever had more regulations or restrictions, far more than most of the previous mines, that got approved, this mine was not approved.
I was in the courthouse about a week before the Public Hearing on this mine and I saw the Zoning Administrator in a meeting with several people who I did not know, but the Administrator mentioned to me later that the people were from the AllEnergy mine. I knew the hearing was coming up and I asked if everything looked good, he looked at me and said yes and that everything was complete.
This was a unique application for several reasons. It was in a remote area, and was not going to ship sand on the roads, it had agreed to use conveyors to get the sand all the way to Rail cars and use no trucking to ship the sand. This was a real asset because the only real legitimate concern as far as public safety is concerned, was more trucks on the road. I have done exhaustive research on the health concerns on dust from mining this sand and the EPA, DNR, and Center for Disease Control has extremely limited concern for dust that is found at frac sand mines. The dangers from silica dust come from industrially manipulated sand, like sand blasting, road construction, and road maintenance, but the dangerous particles don’t exist at the mining operation.
I have repeatedly asked for just one name of a person who got a sand related disease from working at the Badger mine, that has operated for close to 40 years, and I have never been given a name. There are none, and much of this was before mine workers wore respirators.
At the public hearing I recall about 6 times as many people testified in favor of this application than against it. Many were from people who knew Roger Haines from his time in the military and in Vet Nam, as it got to be a point of discussion at a recent reunion that Roger and his wife had attended. Imagine a man who fought for the ability to keep free people free, being denied the ability to use his land that is his Constitutional right to do.
You say he does not have that right, well unfortunately we might learn that he does the hard way! As I see it, in Trempealeau County we have a mining ordinance. That alone establishes a great deal of direction. Then the applicant has to do exhaustive preparation and research and when that is done, they pay a fee, and the county starts the very close examination of the design, and a complex list of necessary requirements that they need to submit. After the county sees all the info is complete, they send if off to a third party review by an engineering company for a look to see that it is complete and that it fits inside all the government rules and guidelines.
At the public hearing, the applicant sat there and agreed to all of the Federal, state, and county conditions placed on them. As I said before this was the same as all previous applicants and more than almost all of the previous applications that got approved. This was not approved and the people who voted against it had to state the reason why they had a no vote. Most of them took time to think about it and wrote a response, one had arrived at the meeting with a pre written response as to why he did like it.
Here are the reasons given for not approving this application.
Quote from 1st no voter “The plan seemed to be rushed,” one member said. “It was revised after the third party review. It leads one to wonder how many times it may be revised again.” This comment had no validity of any kind. The application had been in place for well over a year, it is and was a proven known fact that the upcoming Moratorium had absolutely no affect on this application, and to say it was rushed was the only thing she could come up with to justify her vote against a very good application The idea that it was revised after the Third Party review, was standard procedure and of no significance now that the application got to the Public Hearing.
Quote from 2nd no voter “The siting does not seem to be in the best interest of our citizens,” committee member one member said. “Nor our best use of our resources in Trempealeau County.” The application had the least amount of derogatory input to Trempealeau county citizens of all previous applications that got approved. The idea that this application was not the best use of our resources in Trempealeau County is all this member could come up with, he had pages of notes, but all of the questions he had were addressed. In reality this is one of the best uses of a resource that exist. There is a long list of great reasons to use frac sand, from creating energy independence to creating jobs. The Obama Administration is firmly behind the Frac sand energy initiative. It is the most practical way to help the Green House Gas issue.
No voter no 3 pulled a typed response out from under his meeting papers, a clear violation of all the rules.
No voter no.4 has a long list of anti sand mining comments in the past.
No voter no.5 I have no opinion on.
All of the reasons given were poor reasons and will not hold up in court. They could not come up with a good reason. The real reason is because the committee at that time had a majority of members who simply don’t like the mining of any land. That too will come out in court or depositions or after the people who are subpoenaed testify.
Trempealeau County can deny a permit, but they need a good reason. Without it they can’t. The applicant met the obligations of the Ordinance, they agreed to the rules, they have a right to be able to use their land as the law allows. Private property rights are not taken lightly by the courts and should not be. The founders of our great Constitution insured private property rights, with some level of oversight
The Committee that did not approve this application has a massive, easy to prove bias against the sand industry; there is a long list of highly respected people willing to testify to that. Not to mention the
internet search shows that bias by individuals many places. This committee cannot simply vote against a mine because they don’t like mines, but that is what they did.
One member of the Committee, who dislikes mining, got on the committee in a way that was never clearly explained. My committee, was asked to submit names of people who we felt would be good replacements for the people who were stepping down, and we did submit names. The people, who were on the list, were not the people who got the appointments. Many people including myself asked what happened, and that is still a mystery.
Allenery has made several good neighbor offers to the people of Trempealeau Co. The county has struggled to fund many needed necessities for a long time. Roads being one of them. At one point the offer was $1,000,000 a year that the county could use as they see fit. I don’t know the details, but that offer was rejected. That million dollar offer was for thirty years, that is thirty million that now the struggling tax payer will have to come up with, and for what? To satisfy the ego and goals of a few committee members who have an agenda against a sand mine on private property?
The plan on this application will insure that this land that is owned by a few families, not a mining company will be fully reclaimed and it will be very productive farm land again when about 80 feet of sand have been removed from beneath the top soil. The county will hold a bond to insure that will happen, the children of the current owners intend to insure that the topography will be a bit different but it will still be a sustainable farm.
There are a few neighbors, who voiced opposition to this mine, but it has limited effect on them, and we as members of society must accept that the world is not a perfect place. Agricultural activities have many side effects that we need to live in the rural areas. Chicken barns, manure, dust, noise, crop sprays, equipment on the roads and the list goes on. These things are legal and accepted, well in some areas some factions are working to stop them, but so far we still have some rights.
Are you wondering why I am involved with this? I have nothing to gain, but a great deal to lose. I was sworn to uphold the United States Constitution, when I was elected to the County Board, something I still have a video of. I will defend everyone’s Rights with a 100% effort. If I don’t help these people, there appears to be only a few from the Government with the interest of working for Justice and fairness for these taxpaying citizens. These are people who have owned this land for a long time; people who struggled to pay for it and pay the taxes all these years.
The people, who don’t like this mine application, are all types. Some neighbors who are looking out for their own interest. I took a very close look at their interest, looked at it and weighed the inconvenience to them compared to the inconvenience of the land owner. Non metallic mining has been legal in Agriculturally Zoned land for many years. By not allowing this application, it will cost these families that want to mine their land millions of dollars, not to mention the loss of leveling the farm after the hills and steep slopes are softened. The cost to the neighbors is negligible, especially when you consider they won’t be exposed to all of the previous stated agricultural activities and odors.
Then we have the others that are working hard to stop it. They don’t like it either, they have been told that it is dangerous, trucks on the road are dangerous, but this has very limited trucking, basically none. These people think they should control other citizen’s private property. They have no right to do that, but they are very vocal, and diligent. They want the hills left the way nature made them. I wonder if they live in a house that disturbed the ground? Did they dig a basement that was made from aggregate and sand? Do they have a paved driveway? Do they utilize the roads? Oh that hurts to realize mining sand is not new, every person who is reading this has utilized mined sand. The difference now is that we have a mandated reclamation. We no longer leave the earth scarred like in the past under the ordinance that passed in Trempealeau County with 96 percent public approval two years ago.
Trempealeau County should stop this outrageous injustice that is sure to cause the State to step in and tie the hands of Local control, as they have had to do in several other situations. Trempealeau County allowed the same emotional mentality to cripple the windmill industry. It is time for the leadership to have the courage and integrity to step up and make science based reasonable decisions.
I totally agree with the decision of the courts who have denied this application. We must preserve and protect the pristine beauty of our wonderful state. In preserving the enviroment we protect our air and drinking water for future generations. Removing the sand from our soil is destroying the soils natural ability to purify our water. Silica sand mining will soon be a thing of the past, we all must strive for clean energy. Great job little town you are fighting off a huge giant with small slingshots. Keep up the good work and vote DEMOCRATIC in the up coming election. The Republicans back all sand mining issues.