ST. PAUL — A Minnesota company interested in mining for silica sand in the southeastern part of the state has asked the U.S. Supreme Court to hear its lawsuit against a county-level ban on the practice.
Minnesota Sands LLC announced that it filed for the review on Tuesday, Oct. 8, and is arguing once again that the Winona County ban violates the Constitution. The move follows the state Supreme Court's upholding of the ban in March, when it sided with lower courts on the matter.
In a news release Tuesday, company president Rick Frick said he was hopeful that the Supreme Court would overturn the ban, saying that it violates the Constitution's commerce clause and "constitutes a regulatory taking of Minnesota Sands’ valuable mineral interests in the county."
"We would much rather be moving forward with work to develop and build our project but were left with no other choice but to bring this matter to the United States Supreme Court," Frick said.
Silica sand is used for hydraulic fracturing, or fracking, the oil and gas extraction technique that involves high-presser injections of water, gravel or sand and chemicals into rock. In practice, the sand holds open fractures created in the earth and allows oil and gas to flow out. It is also used in construction.
Mining for silica sand, which can then be processed for use as what the industry terms "frac sand," can be controversial, though, because of its purported effects on human health and the environment. Fine dust kicked up as a byproduct of the sand mining process has the potential to affect water and air quality.
But proponents say that sand mining can create jobs and provide a boost to regional economies. And while there are no fossil fuel reserves in Minnesota, there are silica sand deposits in southern parts of the state and in western Wisconsin.
Minnesota Sands holds several mining leases in the former, including five in Winona County. The privately held company claims to have invested millions of dollars in efforts to obtain the involved mineral rights and has for years come up against opposition from some environmental advocacy groups and residents in the area.
Public outcry was loud enough in 2016 for the Winona County commissioners to enact a ban on frac sand mining, the first of its kind in the state, that Minnesota Sands has challenged in court now several times over. Winona County has not submitted an official response to the company's new filing submitted last week.
In a phone interview Tuesday, Winona County attorney Karin Sonneman said the county will review the filing with outside counsel it previously worked with on previous cases against the ban.
The ban prohibits the mining and processing of industrial silica sand but does not prohibit mining for sand used in construction projects, which doesn't necessarily need to be processed. Because Minnesota Sands has no market for frac sand in Minnesota to begin with, it has argued, it would invariably be sold and transported to out-of-state companies.
Thus the ban, the company has said, effectively violates the Constitution's interstate commerce clause. It also renders worthless land Minnesota Sands leased prior to its taking effect, the company has said, effectively violating the takings clause, which allows the government to seize private property only if it provides "just compensation."
"The arguments that they're making in that are the same that they made throughout the appellate process," Sonneman said of the new filing.
Reached by phone Tuesday, Johanna Rupprecht, a policy program organizer at the Minnesota-based Land Stewardship Project, which opposes the sand mining proposals, said it was disappointing but not surprising for Minnesota Sands to challenge the ban once more. The group may file an amicus brief in the case as it has in the past, she said.
"It certainly fits within the pattern of behavior of this company. They have shown that they don't respect democracy. They don't respect the will and the decision of a democratically elected local government, they don't respect the will of the people in the community of Winona County or any other communities where they're trying to operate," Rupprecht said.
"It's just like one last desperate attempt to try to be able to do what they've been clearly told no, they cannot do so many times, now," she said.