ST. PAUL — The Minnesota Court of Appeals on Monday affirmed the decision of the district court and upheld Winona County’s ban on the mining of silica sand for hydraulic fracturing.

The countywide frac sand ban, the first of its kind in the nation, prohibits the mining, processing and transportation of silica sand for the purpose of fracking. The ban was formally adopted on Nov. 22, 2016 on a 3-2 vote by the county’s board of commissioners.

In its support of the ban, the appeals court said the zoning ordinance amendment neither violates the dormant Commerce Clause nor does the county owe Minnesota Sands compensation for its property interest — leases to mine silica sand.

“We affirm the district court’s grant of summary judgment to respondent Winona County because there are no genuine issues of material fact and the district court did not err in its application of the law,” the appeals court ruling states.

Minnesota Sands, the appellant in the case, released a statement saying, the company is “extremely disappointed by the ruling and we are reviewing the decision to determine our options that could include appealing this decision.”

The company still contends that the ban on mining, processing and transporting frac sand is a violation of the Commerce Clause and “constitutes a taking under the U.S. and Minnesota Constitutions.”

In a partial dissension, Judge Matthew Johnson said the county should be responsible, at least in part, for a taking of the value of Minnesota Sands’ property interests.

The company cited that partial dissension as some of its reason to move forward with a possible appeal. “The ban eliminates landowner mineral rights and creates an economic risk and threat to anyone who benefits from the use of their land,” the company states.

Those who helped create the ban in Winona County saw the ruling as a victory for the land and the people of Winona County.

“It confirms that people working together can protect their community against a destructive industry like this,” said Johanna Rupprecht, a policy organizer with Land Stewardship Project, after today’s ruling. Rupprecht and LSP helped organize community support for the ban.

“This affirms that Winona County is within its rights to pass this ordinance,” she said. “This ruling further affirms that the proper role of government is to take bold action to protect the common good, for both people and the land.”

 

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