Respondents Brief — Minnesota Sands, LLC, Petitioner v. County of Winona, Minnesota

Supreme Court briefDec 4, 2020

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No. 20-441

In the

Supreme Court

of the United States

______________

Minnesota Sands, LLC,

Petitioner,

vs.

County of Winona, Minnesota,

Respondent.

______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MINNESOTA

______________

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

______________

Jay T. Squires

Elizabeth J. Vieira

Counsel of Record

Kristin C. Nierengarten

RUPP, ANDERSON, SQUIRES &

WALDSPURGER, P.A.

333 South Seventh Street, Suite 2800

Minneapolis, MN 55402

(612) 436-4300

jay.squires@raswlaw.com

Attorneys for Respondent

2020 - Bachman Legal Printing n (612) 339-9518 n 1-800-715-3582 n Fax (612) 337-8053

QUESTIONS PRESENTED

Whether the Minnesota Supreme Court

correctly held that the dormant Commerce Clause

does not prohibit a local government from adopting a

land-use regulation that differentiates between

different materials and different extractive processes

and restricts only the extractive process that poses

far greater risks to the land and surrounding

environment.

Whether the Minnesota Supreme Court

correctly held that under Minnesota law and the

terms of the specific leases here, which were acquired

by Minnesota Sands during a moratorium and

contingent on events that never came to pass,

Minnesota Sands has no property interest in the

relevant mineral estates because it has not fulfilled

the conditions precedent that the leases impose.

TABLE OF CONTENTS

QUESTIONS PRESENTED .................................. i

TABLE OF AUTHORITIES ................................. iv

INTRODUCTION .................................................. 1

STATEMENT OF THE CASE .............................. 3

I. Factual Background ........................................ 3

II. Winona County’s Regulation of Industrial

Silica-Sand Mining........................................... 5

III. The Present Dispute ........................................ 8

IV. The Minnesota Supreme Court’s Decision.

............................................................................ 10

REASONS FOR DENYING THE PETITION ... 12

This Court Should Deny Certiorari On

Minnesota Sands’ Splitless, Factbound,

And Meritless Dormant Commerce Clause

Claim .......................................................... 13

Minnesota Sands’ Dormant Commerce

Clause Claim Rests On Factual

Assertions That The Courts Below

Rejected. ................................................ 14

Minnesota Sands’ Dormant Commerce

Clause Claim Is Meritless. ................... 17

Minnesota Sands’ Dormant Commerce

Clause Arguments Are Not Dispositive.

……………………………………………..24

Minnesota Sands’ Assertion That

Review Is Needed To Prevent Economic

Conflict Is Baseless. ............................. 25

II. This Court Should Deny Certiorari On

Minnesota Sands’ Splitless, Factbound,

And Meritless Takings Claim. .................... 27

The Decision Below Held Only That The

Specific Terms Of Minnesota Sands’

Leases Gave It No Property Interest

Here, Not That Permitting

Requirements Eliminate Otherwise

Protectable Property Interests. ........... 27

The Decision Below Does Not Conflict

With Decisions From Other Courts Or

With This Court’s Precedent. .............. 31

CONCLUSION .................................................... 36

APPENDIX

Board of County Commissioners,

Procedural History, Findings of Fact,

Conclusions, and Adoption of Zoning

Ordinance Amendment, November 22, 2016

…………………………………… App. 1

iii

TABLE OF AUTHORITIES

Cases

Alaska v. Arctic Maid, 366 U.S. 199 (1961) .............. 11

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) . 15

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564

(1972) ...................................................................... 20

Brimmer v. Rebman, 138 U.S. 78 (1891) .................. 15

B-Y Ranches v. Tooele County, 91 P.3d 841 (Utah

App. 2004) .............................................................. 21

Camps Newfound/Owatonna, Inc. v. Town of

Harrison, 520 U.S. 564 (1997) ............................... 12

City of Philadelphia v. New Jersey, 437 U.S. 617

(1978) ................................................................ 14, 15

Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951)

................................................................................ 15

Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1

(1928) ...................................................................... 13

Ft. Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t

of Nat. Res., 504 U.S. 353 (1992) ........................... 15

Gen. Motors Corp. v. Tracy, 519 U.S. 278 (1997) 11, 15

Hodel v. Va. Surface Min. & Reclamation Ass’n, Inc.,

452 U.S. 264 (1981) ................................................ 22

John R. Sand & Gravel v. United States, 62 Fed. Cl.

556 (2004) ............................................................... 21

Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.

595 (2013) ............................................................... 22

Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) 20

Ohio ex rel. R.T.G., Inc. v. State, 780 N.E.2d 998

(Ohio 2002) ............................................................. 21

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) ............. 22

PBS Coals, Inc. v. Dep’t of Transp., 206 A.3d 1201

(Pa. Cmwlth. Ct.) ................................................... 21

Pennsylvania v. West Virginia, 262 U.S. 553 (1923) 13

Seven Up Pete Joint Venture v. Montana, 2002 WL

34447228 (D. Mont. Dec. 9, 2002) ......................... 21

Seven Up Pete Venture v. State, 114 P.3d 1009 (Mont.

2005) ....................................................................... 21

State v. Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014)

................................................................................ 16

Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725

(1997) ...................................................................... 22

Tenn. Wine & Spirits Ass’n v. Thomas, 139 S. Ct.

2449 (2019) ............................................................. 12

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid

Waste Mgmt. Auth., 550 U.S. 330 (2007) .............. 14

United Nuclear Corp. v. United States, 912 F.2d 1432

(Fed. Cir. 1990) ...................................................... 20

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985) ....................................................... 21

Washburn v Gregory Co., 147 N.W. 706 (Minn. 1914)

................................................................................ 22

Webb’s Fabulous Pharms., Inc. v. Beckwith, 449 U.S.

115 (1980) ............................................................... 20

West v. Kansas Natural Gas Co., 221 U.S. 229 (1911)

................................................................................ 13

Statutes

Minn. Stat. §116C.99(1)(d) .......................................... 7

INTRODUCTION

Minnesota Sands’ petition for certiorari

presents two questions, each of which mischaracterizes

the decision below. In reality, the decision below is

factbound, implicates no division of authority, and is

entirely correct. The petition should be denied.

The Minnesota Supreme Court’s decision below

upheld a land-use regulation enacted by the Winona

County Board of Commissioners that prohibits

mining industrial silica sand in Winona County in

ways that pose grave environmental risks, but

permits mining construction sand in a manner and

scale that traditionally has not created serious risks

to the surrounding land and environment. Minnesota

Sands challenges that decision on two grounds,

claiming the ordinance violates the dormant

Commerce Clause and works an unconstitutional

taking. Neither challenge warrants this Court’s

review.

First, Minnesota Sands asks this Court to

decide whether a local government violates the

dormant Commerce Clause if it prohibits mining a

certain mineral for industrial purposes, but permits

mining “the same mineral in the same way” for local

construction. Pet.i. But that question does not even

purport to implicate a split among lower court

authority and depends on factual (mis)characterizations

that the courts below squarely rejected. In particular,

Minnesota Sands’ first question presented depends on

its repeated factual assertion that mining for

industrial silica sand and mining for construction

sand involve mining “the same mineral in the same

way.” The courts below rejected that assertion twice

over, finding that industrial silica sand and

construction sand are neither the same mineral nor

mined in the same way. As a result, Minnesota

Sands’ first question is not actually presented by the

decision below, and its ongoing disagreement with the

Minnesota courts over the underlying facts does not

warrant this Court’s review. Regardless, the

Minnesota Supreme Court’s decision faithfully

applied this Court’s precedent, and its alternative

holding that Minnesota Sands would not be entitled

to relief in any event makes this case a particularly

unattractive candidate for certiorari.

Second, Minnesota Sands asks this Court to

decide whether the Minnesota Supreme Court erred

by holding that “permitting requirements eliminate

the existence of a federally protected property

interest” for takings purposes. Pet.i. But the

Minnesota Supreme Court held nothing of the kind.

Instead, it held only that under Minnesota law and

the terms of the particular leases involved here,

which were highly contingent, Minnesota Sands

never satisfied the “specific conditions that govern

[its] rights to use and possess the leased premises,”

thus as a contractual matter Minnesota Sands never

acquired the rights that it claims were taken.

Pet.App.36. That fact-specific state-law holding does

not conflict with any other lower-court decision, does

not conflict with this Court’s precedent, and poses no

threat to property rights more broadly. This Court

should deny certiorari.

STATEMENT OF THE CASE

Factual Background

Winona County is located in southeastern

Minnesota, directly across the Mississippi River from

Wisconsin. The County is part of a geologically

unique and ecologically sensitive karst region,

defined by large interconnected networks of

underground caverns, sinkholes, springs, and

streams. Pet.App.5. These features make the area

particularly vulnerable to groundwater pollution,

which can spread easily through the karst region’s

porous underground structure.

The County contains significant underground

deposits of silica sand, a hard-mineral sand that is

used for a variety of purposes. Those purposes

include manufacturing glass, abrasive materials,

shingles, countertops, livestock bedding, and sand

traps on golf courses. Pet.App.5. They also include

various uses in the construction industry, including

in buildings and road paving. Pet.App.5.

In the last twenty years, silica sand has also

been used in the extraction process for drilling oil and

natural gas known as hydraulic fracturing, or

“fracking.” Pet.App.4. As a hard-mineral sand, silica

sand can be used in fracking to prop open geological

fractures and allow oil and gas to seep out. This use

has led to boom-and-bust cycles in the demand for

silica sand, with sudden increases in demand during

the fracking boom followed by decreases during

subsequent industry downturns. Pet.App.4, 42.

Before silica sand can be used for fracking, it

must be processed to meet industry standards, which

is generally done at the extraction site. Pet.App.4.

The typical method involves washing and filtering

raw sand in unlined sedimentation ponds located at

the mines. Pet.App.4. This process requires large

volumes of water—up to 6,000 gallons per minute—

and chemicals called flocculants used to remove the

unwanted sediments. Pet.App.4. The leftover

mixture of unwanted sediments, water, and

flocculants is then returned to the mines without

treatment, even though some flocculants are known

to be hazardous to human health, including at least

one known neurotoxin and probable carcinogen.

Pet.App.4-5 & n.1; Pet.App.129. Industrial mining of

silica sand is also associated with numerous adverse

environmental impacts, including effects on air and

water quality and the natural landscape, as well as

negative effects on tourism, noise levels, traffic,

health, and the local economy. See Pet.App.124-25.

Contrary to what Minnesota Sands suggests

throughout its brief, there are significant differences

between industrial silica-sand mining for uses like

fracking as compared to mining for construction

purposes. To begin with, as the Minnesota Supreme

Court explained, Minnesota Sands’ claim that the

underlying sand is “the same” is “not supported by

the record.” Pet.App.27 n.14. On the contrary, a

wider variety of sand can be used for construction

purposes, so “at least some of the time, construction

minerals are not the kind of raw silica sand that is

needed to produce processed frac sand.” Pet.App.27

n.14; see Pet.App.127-28 (noting U.S. Geological

Survey’s distinction between industrial and

construction sand).

More important, there are “major differences

between the operations for mining construction

materials versus mining industrial materials” that go

both to the scale and to the nature of the extractive

process. Pet.App.128. Industrial mining operations

“involve larger mines in operation for long periods of

time that use blasting, underground mining

techniques and involve chemical treatment of the

mined sand,” while construction mining operations

“tend to involve small mines that engage in only

periodic mining activities, which do not involve

underground mining, blasting, or chemical

processing.” Pet.App.128-29. And unlike

construction mining, industrial mining of silica sand

(especially for fracking purposes) is exposed to

unpredictable boom-and-bust cycles, which can

exacerbate the risks to the local environment by

producing unmet financial and environmental

obligations. Pet.App.130-31. Industrial mining

operations also require more water, increasing the

risk of groundwater pollution. Pet.App.128-130. The

latter concern is especially serious in Winona County,

since the sites for “specifically industrial silica sand

mining” are located primarily in the County’s

ecologically sensitive karst formations. Pet.App.12930.

II.

Winona County’s Regulation of

Industrial Silica-Sand Mining

In September 2011, Winona County received

three conditional-use permit applications seeking

permission to engage in industrial silica-sand mining

in the County. Pet.App.6. In January 2012, the

County Board of Commissioners denied those

applications and enacted a three-month moratorium

on silica-sand mining to allow the County to study

the potential impacts on the community and the

environment of industrial mining activities.

Pet.App.6. The Board ultimately adopted additional

land-use regulations for silica-sand mining, which

included requiring a conditional-use permit for all

extraction pits and land alteration operations.

Pet.App.6-7.

In 2016, the Board faced renewed

conversations about the potential effects of industrial

silica-sand mining. The Board referred the issue to

the Winona County Planning Commission, which

held multiple public hearings and received hundreds

of oral and written comments (amounting to

thousands of pages of information) supporting and

opposing regulation of industrial mineral mining,

including comments from County employees, industry

representatives, environmental organizations,

officials from other counties where industrial silicasand mining is occurring, and the public at large.

Pet.App.122-25. The vast majority of those comments

supported some form of additional regulation on any

kind of mining operations planned for Winona

County. Pet.App.124. The Planning Commission also

received a report from the Minnesota Environmental

Quality Board on the impact of industrial mining on

Winona County, based on studies of industrial mining

operations in nearby counties and other information

from state and local agencies, geologists, doctors,

organizations that support industrial mining, and

environmental scientists. Pet.App.125. The County

then held another public hearing on the issue, at

which over 100 people spoke and over 150 written

comments were submitted. Pet.App.125. Based on

that eight-month process of review, comment, and

deliberation, the Board adopted the amended

ordinance challenged here. Pet.App.8-9, 122-27.

That ordinance, like other authorities,

distinguishes between mining for industrial minerals

and mining for construction minerals. Pet.App.9-10;

see Pet.App.128 (noting the Minnesota Department of

Natural Resources’ distinction between industrial

and construction mining); U.S. Office of Mgmt. &

Budget, North American Industry Classification

System at 112 (2017) (distinguishing Construction

Sand and Gravel Mining from Industrial Sand

Mining), available at https://bit.ly/2Ky4Xkw. The

ordinance permits mining for “construction minerals”

with a conditional-use permit, but prohibits mining

for “industrial minerals” in the County except for

operations that existed when the ordinance was

passed. Pet.App.9-11, 200-01. The ordinance defines

“industrial minerals” as “naturally existing high

quartz level stone, silica sand, quartz, graphite,

diamonds, gemstones, kaolin, and other similar

minerals used in industrial applications, but

excluding construction minerals.” Pet.App.9, 195. It

also adopts the definition in Minnesota Statues

§116C.99(1)(d) of “silica sand” as “well-rounded, sandsized grains of quartz (silicon dioxide), with very little

impurities in terms of other minerals,” which the

statute notes “is commercially valuable for use in the

hydraulic fracturing of shale.” Pet.App.10, 196.

Conversely, the ordinance defines “construction

minerals” as “natural common rock, stone, aggregate,

gravel and sand that is produced and used for local

construction purposes,” including a variety of listed

examples. Pet.App.10, 195.

The Board’s findings explain in detail the

Board’s rationale for the challenged ordinance,

including the distinction between industrial-mineral

operations and construction-mineral operations. As

they show, the Board’s primary concerns were to

prevent the negative impact that industrial silicasand mining would have on air and water quality,

traffic and road safety, and natural landscapes in the

County, as well as the health and general welfare of

the County’s citizens. App.6-7, 25-26; see

Pet.App.199-200. The Board also particularly

emphasized the unique geologic conditions in the

County, and the importance of protecting the

County’s groundwater in light of those conditions.

App. 21-22, 34-35; see Pet.App.200. By contrast,

nothing in the record indicates that the Board acted

based on any animus against out-of-state fracking or

any form of local economic protectionism. On the

contrary, “none of the comments that were critical of

the fracking industry were credited by the Board in

its findings adopting the amendment.” Pet.App.25.

III.

The Present Dispute

In February 2012 – during the County

moratorium on any silica-sand mining – Minnesota

Sands acquired four leases for silica-sand mining in

the County. Pet.App.6. It acquired a fifth such lease

in November 2015. Pet.App.6. While Minnesota

Sands portrays these as valuable, unconditional

leases rendered worthless by regulation, the reality is

quite different. Consistent with the reality that four

of the five leases were obtained by Minnesota Sands

while a moratorium was imposed, the leases involved

almost no immediate expense and were highly

contingent. Each lease provides that for a one-time

payment of $1000 to the landowner, plus royalties on

any sand eventually removed from the premises,

Minnesota Sands obtained the right to use and

possess the premises “solely to mine Frac Sand [i.e.,

silica sand] to be used … for commercial purposes.”

Pet.App.6-7. Minnesota Sands’ rights and obligations

under the leases are expressly “conditioned

upon…obtaining any zoning or other governmental

approvals” required to engage in silica sand mining.

Pet.App.7; see Pet.App.36-37 (explaining that under

the leases, Minnesota Sands had “no right to use or

possess the land until it was able to engage in silica

sand mining”).

In August 2012, Minnesota Sands sought

conditional-use permits for two sites in Winona

County. Pet.App.7. However, the silica sand market

crashed due to a fracking downturn, and Minnesota

Sands abandoned its pursuit of permits and never

completed the required environmental review

process. Pet.App.7. Minnesota Sands never sought

permits or environmental review to mine any of its

other leases in Winona County, and indeed took no

further action at all for more than four years.

Pet.App.7-8.

In March 2017, a few months after the Board

passed its amended ordinance prohibiting industrialminerals mining in Winona County, Minnesota Sands

sued the County in Minnesota state court, claiming

inter alia that the ordinance violated the dormant

Commerce Clause and was an unconstitutional

taking. Pet.App.11. In a detailed opinion, the trial

court rejected all of Minnesota Sands’ claims and

granted summary judgment for the County.

Pet.App.120-46. The Minnesota Court of Appeals

affirmed. Pet.App.69-119.

IV.

The Minnesota Supreme Court’s

Decision

The Minnesota Supreme Court likewise

affirmed. On Minnesota Sands’ dormant Commerce

Clause claim, the court rejected the argument that

the ordinance facially discriminated against out-ofstate interests by allowing mining for construction

minerals for “local construction purposes,” explaining

that the term “local” did not limit permissible mineral

uses to in-state construction and that the ordinance

made no express distinction between in-state and outof-state interests. Pet.App.20-23. Even if the term

“local” were discriminatory, the court held, the

ordinance should be cured by invalidating only that

word—allowing mining for any “construction

purposes,” but continuing to prohibit the industrial

mining that Minnesota Sands wants to conduct.

Pet.App.23-24.

The Minnesota Supreme Court also found the

ordinance had no discriminatory purpose, explaining

that Minnesota Sands had “not pointed to any

concrete evidence” to support its argument that the

Board acted out of anti-fracking animus rather than

the legitimate environmental, economic, safety, and

welfare concerns that the Board detailed.

Pet.App.25. The court likewise found no

discriminatory effect, explaining that the ordinance

did not impermissibly favor in-state economic

interests over out-of-state interests, and instead

applied equally to all industrial-mineral mining

operations and their in-state and out-of-state

consumers. Pet.App.25-29. The court specifically

rejected the dissent’s claim that the ordinance was

discriminatory because construction minerals and

industrial minerals are “the same sand,” finding that

claim “not supported by the ordinance or the record.”

Pet.App.27 n.14.

The Minnesota Supreme Court also rejected

Minnesota Sands’ takings claim, agreeing with the

trial court and the Minnesota Court of Appeals that,

as a matter of state law, Minnesota Sands had not

yet acquired any concrete property interest under its

leases. Pet.App.30-44. As the court explained, the

property interests (if any) belonging to a lessee

“depend upon the terms of the lease.” Pet.App.35.

Looking specifically at the terms of Minnesota Sands’

leases, the court held that “the essential terms of

these leases are subject to specific conditions that

govern Minnesota Sands’ rights,” and in particular

that “Minnesota Sands had no right to use or possess

the land until it was able to engage in silica sand

mining.” Pet.App.36-37. “Until that condition was

met, the leases reserved the rights to use and possess

the premises to the lessors in absolute terms.”

Pet.App.37. Because Minnesota Sands never

satisfied that condition by obtaining the necessary

permission to begin mining, “the conditions precedent

to acquiring possession and control under any of the

leases” were never met, and so Minnesota Sands

“does not have a fully-fledged leasehold interest

under Minnesota law.” Pet.App.38. Instead,

Minnesota Sands “at most” held “expectancy interests

that are too speculative to support a takings claim.”

Pet.App.38.

REASONS FOR DENYING THE PETITION

Neither of Minnesota Sands’ questions

presented warrants this Court’s review. As to its first

question presented, regarding the dormant

Commerce Clause, Minnesota Sands does not claim

that the decision below conflicts with the decisions of

any other lower court; instead, it asserts only that the

Minnesota Supreme Court misapplied this Court’s

precedent. Pet.16-23. That is precisely the kind of

purported “misapplication of a properly stated rule of

law” that does not warrant certiorari. S. Ct. R.10.

Still worse, Minnesota Sands’ question presented

depends on its factual assertions that industrial

silica-sand mining and construction sand mining

involve “mining the same mineral in the same way,”

Pet.i—assertions that the courts below rejected.

Pet.App.27 n.14, 78-80, 122-31, 141. Minnesota

Sands’ factual dispute with the Minnesota courts

does not warrant this Court’s review. The decision

below is fully consistent with this Court’s precedent,

and the Minnesota Supreme Court’s alternative

holding that Minnesota Sands cannot obtain the

relief it seeks in any event makes this case an

exceptionally poor candidate for further review.

Finally, nothing supports Minnesota Sands’

exaggerated assertion that the decision below will

lead to a flood of politically motivated land-use

restrictions, contra Pet.24-27—especially when the

record is clear that the restriction here was not

adopted out of political animus, see Pet.App.25, 12231. The absence of any amicus support for Minnesota

Sands’ petition underscores the point; after all, if the

decision below really were a grave threat to the

fracking industry (or any other industry), one would

expect that at least some amici would have appeared

to urge further review.

Minnesota Sands’ second question presented,

regarding its takings claim, fares no better. That

question rests on a profound mischaracterization of

the decision below, asserting the Minnesota Supreme

Court held that local permitting requirements

“eliminate the existence of a federally protected

property interest unless and until the permits are

granted.” Pet.i. In fact, the Minnesota Supreme

Court held nothing of the kind, and indeed

specifically rejected that view. Instead, the court

held only that under the terms of the particular

leases here and under Minnesota law, Minnesota

Sands never acquired the mineral rights that it now

claims were taken, because it never fulfilled the

contractual conditions precedent that the leases

impose. That narrow decision does not implicate any

conflict in the lower courts, does not contravene this

Court’s precedent, and does not warrant further

review. Certiorari should be denied.

This Court Should Deny Certiorari On

Minnesota Sands’ Splitless, Factbound,

And Meritless Dormant Commerce Clause

Claim.

Minnesota Sands’ first question presented asks

this Court to review a splitless question, based on

factual assertions that the courts below rejected, and

to overturn a decision that faithfully applied this

Court’s precedent, on an issue that is not outcomedeterminative. It comes nowhere near warranting

this Court’s attention.

A. Minnesota Sands’ Dormant Commerce

Clause Claim Rests On Factual Assertions

That The Courts Below Rejected.

Minnesota Sands’ first question presented asks

whether a local government violates the dormant

Commerce Clause if it generally prohibits mining a

certain mineral, but permits “mining the same

mineral in the same way” for certain local uses. Pet.i.

That question, and Minnesota Sands’ entire dormant

Commerce Clause claim, rests on two factual

assertions that the courts below rejected: that

industrial silica sand and construction sand are “the

same mineral,” and that they are mined in “the same

way.”

First, Minnesota Sands repeatedly asserts that

the ordinance here prohibits mining silica sand for

fracking and other industrial purposes, but allows

mining “the very same sand” for local construction

purposes. Pet.16; see Pet.1 (“the very same sand”),

Pet.11 (“the very same sand”), Pet.12 (“the same

sand”), Pet.22 (“the very same sand”), Pet.23 (“the

same sand”). That factual assertion—that industrial

silica sand and construction sand are “the very

same”—is critical to Minnesota Sands’ dormant

Commerce Clause argument, as Minnesota Sands

does not try to argue that the ordinance here violates

the dormant Commerce Clause by prohibiting mining

for some minerals (such as diamonds and kaolin)

while allowing mining for others (such as natural

common rock and gravel). See Pet.App.9-10. 1

That is for good reason, as this Court has repeatedly

held that the dormant Commerce Clause does not prohibit

states and local governments from discriminating among

That critical factual assertion—that industrial

silica sand and construction sand are identical—was

squarely rejected by the Minnesota Supreme Court,

which dismissed the idea that the two “are in reality

‘the same sand’” as “not supported by the ordinance

or the record.” Pet.App.27 n.14. Indeed, as the

Minnesota Supreme Court recognized, a wider

variety of sand can be used for construction purposes

and Minnesota Sands’ own expert “candidly

admit[ted] that the two are not always the same,”

recognizing that “at least some of the time,”

construction sand is “not the kind of raw silica sand

that is needed to produce processed frac sand.”

Pet.App.27 n.14; see Pet.App.80 (“The ordinance’s

differentiation between silica sand—an industrial

mineral—and other types of sand—construction

minerals—is consistent with the record.”);

Pet.App.128 (noting the U.S. Geological Survey’s

distinction between industrial sand and construction

sand). Nothing in the dormant Commerce Clause

prohibits local governments from treating different

minerals differently, and Minnesota Sands makes no

attempt to argue otherwise. The question of whether

a local government can impose varying restrictions on

mining “the same mineral,” Pet.i., simply is not

presented here.

Second, Minnesota Sands is not only wrong to

say that industrial silica sand and construction sand

are “the same mineral,” but also wrong to claim they

entities that are not “substantially similar” because they operate

in “arguably distinct markets.” Gen. Motors Corp. v. Tracy, 519

U.S. 278, 298, 300 (1997); see, e.g., Alaska v. Arctic Maid, 366

U.S. 199 (1961).

are mined in “the same way.” Pet.i.; see, e.g., Pet.1, 8.

On the contrary, the record below shows (and the

courts below recognized) that there are “major

differences between the operations for mining

construction materials versus mining industrial

materials,” with the former generally involving small

mines, gentler extraction techniques, and only

periodic mining, while the latter involves larger

mines that use blasting, underground mining

techniques, and chemical processing. Pet.App.12829; see Pet.App.27 n.14 (noting the “sensible”

distinction between industrial and construction

mining given the risk of groundwater pollution from

chemical processing). Industrial mining is also far

likelier to strain the environment, local resources,

and infrastructure, Pet.App.128-30, and create

negative economic and environmental effects on the

surrounding community from boom-and-bust mining

cycles, Pet.App.130-31. The Board properly took

those facts into account in regulating the two kinds of

mining differently. See Pet.App.128-31, 198-200.

The fact that Minnesota Sands’ expert disagrees with

the Board on whether industrial mining and

construction mining differ, see Pet.8 (citing

Pet.App.165, 170), is hardly a license for Minnesota

Sands to ignore the clear facts in the record, let alone

a reason for this Court to grant review. 2

Minnesota Sands is equally wrong to suggest that the

ordinance allows silica sand to be mined for “all uses that are

common locally” but not uses that occur “only in other States.”

Pet.i. As the record makes clear, silica sand has numerous

industrial uses in Minnesota, including glassmaking,

countertops, shingles, and other manufacturing. Pet.App.5.

The ordinance prohibits mining silica sand in Winona County

for all of those local uses.

In short, Minnesota Sands’ purported question

presented—whether a county can prohibit mining a

mineral for out-of-state uses but permit “mining the

same mineral in the same way” for local uses, Pet.i—

is not actually presented here. That question, and

Minnesota Sands’ entire dormant Commerce Clause

claim, depends on factual assertions that the courts

below rejected. Even if Minnesota Sands had some

basis for challenging those factual issues (and it does

not), that factbound dispute would hardly warrant

this Court’s review. That alone is sufficient reason to

deny certiorari on the first question presented.

B. Minnesota Sands’ Dormant Commerce

Clause Claim Is Meritless.

Minnesota Sands’ dormant Commerce Clause

claim fails not only on the facts, but on the law. That

claim relies on a “peculiar” doctrine that “cannot be

found in the text of any constitutional provision but is

(at best) an implication from one.” Tenn. Wine &

Spirits Ass’n v. Thomas, 139 S. Ct. 2449, 2477 (2019)

(Gorsuch, J., joined by Thomas, J., dissenting); see

Camps Newfound/Owatonna, Inc. v. Town of

Harrison, 520 U.S. 564, 610 (1997) (Thomas, J.,

joined by Rehnquist, C.J., and Scalia, J., dissenting)

(“The negative Commerce Clause has no basis in the

text of the Constitution, makes little sense, and has

proved virtually unworkable in application.”).

Minnesota Sands then stretches that doctrine far

beyond its existing bounds, seeking to use it to strike

down a local land-use regulation (a step that this

Court has never taken) even though that regulation

implicates the most classic concerns of local

government (concerns about the extraction of

resources and the effect on the surrounding

environment) and does not discriminate against

interstate commerce on its face, in its purpose, or in

effect. The Minnesota Supreme Court correctly

rejected Minnesota Sands’ dormant Commerce

Clause claim.

The ordinance is not discriminatory

on its face.

First, the Minnesota Supreme Court correctly

concluded that the County’s land-use ordinance does

not discriminate against interstate commerce on its

face. Pet.App.17-24. As the court explained, the

ordinance is not an “export ban” prohibiting any outof-state shipment of a particular resource.

Pet.App.18. Instead, “[a]s a land-use regulation,” the

ordinance “is foremost a restriction on the rights of

Minnesota landowners.” Pet.App.18. The primary

burden of the regulation falls on local landowners

who are fully represented in the local government.

More important, that restriction “is evenhanded on

its face”; it “pays no regard to whether the person or

entity who wishes to engage in industrial mining

resides in-state or out-of-state or wishes to sell the

industrially mined sand to in-state or out-of-state

consumers.” Pet.App.18. Because the ordinance

imposes no “express discrimination between in-state

and out-of-state economic interests, Minnesota Sands’

facial discrimination theory fails.” Pet.App.19.

Minnesota Sands claims that reasoning

conflicts with this Court’s precedent, relying on two

export-ban cases from nearly a century ago. Pet.1819 (discussing Foster-Fountain Packing Co. v. Haydel,

278 U.S. 1 (1928) (shrimp); Pennsylvania v. West

Virginia, 262 U.S. 553, aff’d on reh’g, 263 U.S. 350

(1923) (natural gas)). Neither is remotely on point.

Unlike the ordinance here, the statutes in those cases

literally discriminated on their face between in-state

and out-of-state interests, drawing explicit lines at

state borders. Haydel, 278 U.S. at 5 n.1;

Pennsylvania, 262 U.S. at 582 n.1. 3 As the

Minnesota Supreme Court recognized, no comparable

facial discrimination exists here; the ordinance bans

all industrial mining in the County, for both in-state

and out-of-state producers and consumers.

Pet.App.17-19.

Minnesota Sands nevertheless suggests that

the ordinance facially discriminates against out-ofstate interests by allowing mining for “construction

minerals,” including “sand that is produced and used

for local construction purposes.” Pet.11-12 (quoting

Pet.App.195). But as already explained (and as the

Minnesota Supreme Court recognized), construction

sand and industrial silica sand are not the same

thing and pose different risks to the local

environment, supra pp.4-5; Pet.App.27 n.14, and

nothing in the dormant Commerce Clause requires a

county to treat different minerals the same. In any

event, as the Minnesota Supreme Court also

recognized, “‘local’ is not synonymous with ‘in-state’”;

here, the term “can be interpreted to include, at the

very least, the neighboring parts of Wisconsin located

across the river from Winona County,” obviating any

claim that the ordinance facially discriminates along

So too for West v. Kansas Natural Gas Co., 221 U.S. 229,

249-50 (1911) (gas pipelines), which Minnesota Sands cites only

in a footnote and which likewise involved explicit state-line

discrimination.

state lines. Pet.App.20. 4 Minnesota Sands cites no

case from this Court or any other holding that such

an ordinance, which on its face applies equally to instate and out-of-state interests, is nevertheless

facially discriminatory. Indeed, Minnesota Sands’

position would mean that any state or local

regulation that uses the word “local” faces “a virtually

per se rule of invalidity,” United Haulers Ass’n, Inc. v.

Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S.

330, 338 (2007)—a proposition this Court has never

adopted.

The ordinance is not discriminatory

in purpose or effect.

The Minnesota Supreme Court also correctly

concluded that the ordinance does not discriminate

against out-of-state economic interests either in

purpose or in effect. As to purpose, the court

explained that Minnesota Sands had “not pointed to

any concrete evidence” to support its claim that the

ordinance was motivated by “animus toward the

primarily out-of-state fracking industry.” Pet.App.25.

“[T]ellingly, none of the comments that were critical

of the fracking industry were credited by the Board in

its findings adopting the amendment.” Pet.App.25.

Instead, those findings showed that the Board was

motivated by legitimate concern for the County’s

environment, economy, and general welfare, based on

a detailed record showing the negative effects of

Indeed, the term “local construction purposes” could

easily be read to cover any construction that occurs at the local

level (as opposed to interstate or international construction

projects), wherever that construction may be—a reading that

would eliminate any claim of facial discrimination.

industrial mining in other communities. See supra

pp.6,16.

Minnesota Sands’ petition repeats (and

repeats, and repeats) its claim that the Board was

motivated by anti-fracking animus, see, e.g., Pet.2

(claiming the Board acted “for the express purpose of

choking off” fracking); Pet.24 (“to force other States to

follow its policy views on fracking”); Pet.25 (to

“squelch” fracking), but again points to no evidence

whatsoever to support that claim. Instead, as below,

Minnesota Sands relies solely on “the alleged

motivation of actors who lobbied in favor of the

amendment,” and whose comments were not credited

by the Board. Pet.App.25; see Pet.10. As the

Minnesota Supreme Court explained, those sources—

the equivalent of county-level legislative history, by

public commenters with no decision-making

authority—have “little (if any) probative value in

demonstrating the objective of the Board as a whole.”

Pet.App.25 (brackets omitted).

Minnesota Sands’ claim of discriminatory

effect is equally unpersuasive. As the decision below

recognized, the “crucial inquiry” in assessing

discriminatory effect is whether the ordinance is

“basically a protectionist measure, or whether it can

fairly be viewed as a law directed to legitimate local

concerns, with effects upon interstate commerce that

are only incidental.” Pet.App.25-26 (quoting City of

Philadelphia v. New Jersey, 437 U.S. 617, 624

(1978)). Here, the overwhelming evidence shows that

this land-use ordinance was enacted not to address

out-of-state fracking operations, but to address

genuine and legitimate local concerns over the

negative local environmental, economic, safety, and

welfare impacts of industrial silica sand mining. See

supra pp.6,16. By contrast, nothing in the record

suggests that the ordinance was enacted to provide

in-state entities an economic advantage against outof-state entities—to the contrary, it is in-state

property owners who bear the brunt of the burdens.

See Pet.App.29 (explaining that the ordinance “does

not further economic protectionism in the sense that

in-state interests benefit at the expense of out-ofstate interests”); cf. Pet.24 (recognizing that the

ordinance was not “motivated by economic

protectionism”).

Instead, Minnesota Sands argues that the

ordinance creates a discriminatory effect simply

because it bans mining for industrial silica sand,

which has a significant out-of-state use, but does not

ban mining for construction sand for local use.

Pet.22-23; see Pet.App.27. That argument fails for

two reasons. First, as already explained, mining for

industrial silica sand and mining for construction

sand are not the same, see supra pp.14-15, and

nothing in the dormant Commerce Clause requires a

county to treat them as if they were. Regulating

different activities differently does not give rise to a

claim of discriminatory effect. See, e.g., Gen. Motors

Corp. v. Tracy, 519 U.S. 278, 298 (1997) (“[A]ny

notion of discrimination assumes a comparison of

substantially similar entities.” (footnote omitted)).

Second, as the Minnesota Supreme Court explained,

the ordinance applies equally to both in-state and

out-of-state consumers of industrial silica sand, both

of whom are deprived of silica sand from Winona

County. Pet.App.27-28. The ordinance prohibits

mining industrial silica sand not only for out-of-state

industrial uses such as fracking, but also for in-state

industrial uses such as manufacturing glass,

shingles, countertops, and other products.

Pet.App.28. That even-handed treatment of in-state

and out-of-state interests “obviates any concern that

the County acts to ‘isolate itself from the national

economy,’ or to ‘saddle those outside the State with

the entire burden’ imposed by the ordinance.’”

Pet.App.28 (brackets omitted) (quoting City of

Philadelphia, 437 U.S. at 627-29).

The decision below does not conflict with any of

the cases from this Court that Minnesota Sands cites.

Contra Pet.20-23 (discussing Brimmer v. Rebman,

138 U.S. 78 (1891); Dean Milk Co. v. City of Madison,

340 U.S. 349 (1951); Bacchus Imports, Ltd. v. Dias,

468 U.S. 263 (1984); Ft. Gratiot Sanitary Landfill,

Inc. v. Michigan Dep’t of Nat. Res., 504 U.S. 353

(1992)). Each of those cases involved precisely the

kind of discriminatory economic protectionism that

this Court’s dormant Commerce Clause doctrine has

been developed to prevent, favoring local economic

interests at the expense of out-of-state interests. In

that context, the Court has found dormant Commerce

Clause violations in cases where a discriminatory

regime harms out-of-state economic interests and

benefits in-state economic interests, even if that

discriminatory regime may harm some in-state

interests as well. See, e.g., Brimmer, 138 U.S. at 80

(statute benefiting local meat producers); Dean Milk,

340 U.S. at 350 (statute benefiting local milk

producers); Bacchus, 468 U.S. at 265 (statute

benefiting local alcohol producers); Ft. Gratiot, 504

U.S. at 355 (statute benefiting local waste producers).

Here, by contrast, there is no claim that the

ordinance benefits any in-state economic interest;

instead, it burdens primarily local property owners in

order to protect the local environment and general

welfare. Pet.App.27-29. That is fatal to Minnesota

Sands’ claim of discriminatory effect.

C. Minnesota Sands’ Dormant Commerce

Clause Arguments Are Not Dispositive.

Even if there were any merit to Minnesota

Sands’ dormant Commerce Clause arguments, this

case would still be a poor vehicle for considering

them, because none of those arguments is outcomedeterminative. On the contrary, the Minnesota

Supreme Court specifically held below that ruling for

Minnesota Sands on its dormant Commerce Clause

claim “would not lead to a different result in this

case.” Pet.App.23. That alternative holding makes

this case a particularly unattractive vehicle for

reviewing Minnesota Sands’ novel dormant

Commerce Clause arguments.

As the Minnesota Supreme Court explained,

even if Minnesota Sands could show that the “use of

the term ‘local’” in the County’s ordinance was

discriminatory and violated the Commerce Clause,

the proper remedy for that defect would be to strike

only “the portions [of the ordinance] that render [it]

unconstitutional.” Pet.App.23 (quoting State v.

Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014)).

Thus, even if there were some impermissible

discrimination in defining “construction minerals” to

include sand used for “local construction purposes,”

the remedy would simply be to strike the word “local,”

such that the ordinance would permit mining

construction sand for all construction purposes

(whether local or not). Pet.App.24.

That remedy, however, would do Minnesota

Sands no good at all. As Minnesota Sands admitted

below, it “has no interest in mining sand to be used

for ‘construction purposes,’” whether local or

otherwise. Pet.App.24. Even if the “local” restriction

on mining construction sand that Minnesota Sands

claims is discriminatory were removed (allowing

entities to mine construction sand for local or nonlocal construction), Minnesota Sands would still be

prohibited from mining industrial silica sand for

industrial purposes. Pet.App.24. As such, even if

this Court were to rule for Minnesota Sands on its

dormant Commerce Clause claim, Minnesota Sands

still “would not be entitled to relief.” Pet.App.24.

This Court should not squander its limited resources

on a question whose resolution cannot affect the

outcome of the case.

D. Minnesota Sands’ Assertion That Review

Is Needed To Prevent Economic Conflict

Is Baseless.

Minnesota Sands ends its dormant Commerce

Clause argument by claiming that review is needed to

“prevent a proliferation of similarly destructive

economic conflicts,” portraying the decision below as

an invitation to local governments to “export their

policy views by constraining exports of their natural

resources.” Pet.24-27. That portrayal has no basis in

reality. As already explained (and as the Minnesota

Supreme Court recognized), nothing in the record in

any way supports Minnesota Sands’ baseless

assertion that Winona County enacted the challenged

ordinance to “force other States to follow its policy

views on fracking” because the County “disapprove[s]

of” that practice. Contra Pet.24; see Pet.App.25. On

the contrary, the record makes abundantly clear that

the Board adopted the ordinance not to regulate outof-state fracking but based on serious and legitimate

concerns about the negative effects of in-county

industrial silica-sand mining. Supra pp.6,16; App.148; see Pet.App.25, 122-31. That classic effort to

regulate locally to protect the local environment poses

no grave threat to the national economy.

Minnesota Sands similarly fails to substantiate

its claim of a “recent and concerning trend” of local

governments “discriminat[ing] against interstate

commerce in order to squelch disfavored economic

activity occurring in a sister State.” Pet.25. If that

claim had any basis in reality, one would expect

Minnesota Sands to have more evidence of its

purported “trend” than three barely-relevant cases

over the past seventeen years. An occasional case

every five years is hardly a trend, let alone evidence

of a pressing need for this Court’s attention. If

anything, those cases (two of which struck down the

challenged laws) only confirm that courts already

have the requisite tools to address any local

regulations that do in fact discriminate against

interstate commerce. The only “threat to the

federalist underpinnings of our republic” that this

petition raises, Pet.25-26, is the risk that petitioners

like Minnesota Sands will continue trying to expand

the judge-made contours of the dormant Commerce

Clause to strike down legitimate, nondiscriminatory

state and local regulations designed to address

unique local circumstances and concerns. That is a

threat this Court should reject, not encourage.

II.

This Court Should Deny Certiorari On

Minnesota Sands’ Splitless, Factbound,

And Meritless Takings Claim.

Minnesota Sands’ second question presented is

just as uncertworthy as its first. Once again,

Minnesota Sands distorts the decision below almost

beyond recognition, claiming the Minnesota Supreme

Court held that a local government can use

“permitting requirements” to “eliminate the existence

of a federally protected property interest.” Pet.i. In

fact, the decision below simply holds that under

Minnesota law and the plain terms of Minnesota

Sands’ leases, which were acquired by Minnesota

Sands during a moratorium and were highly

contingent on events that never came to pass,

Minnesota Sands never acquired the property

interest that it now claims was taken. That splitless,

factbound, and correctly decided issue does not

warrant this Court’s review.

A. The Decision Below Held Only That The

Specific Terms Of Minnesota Sands’

Leases Gave It No Property Interest Here,

Not That Permitting Requirements

Eliminate Otherwise Protectable

Property Interests.

Minnesota Sands claims that review of the

decision below is needed because, it says, the

Minnesota Supreme Court held that “a mineral

estate in land cannot qualify as ‘property’ under the

Fifth Amendment unless and until the owner has

obtained all necessary mining permits.” Pet.28; see

Pet.32-33 (claiming the decision below “interpreted

the Fifth Amendment to mean that a mineral estate

is not ‘property’ in the absence of a mining permit”).

Minnesota Sands suggests that it invested

substantial resources to acquire valuable mineral

leases rendered worthless by subsequent regulation.

That description of the decision below is patently

false. In fact, Minnesota acquired the highlycontingent leases here, which paid the original

landowners a pittance ($1000 in upfront payments),

in the wake of a moratorium on industrial mining.

The resulting leases were entirely contingent on longshot regulatory approvals that never came to pass.

The Minnesota Supreme Court came nowhere near

claiming that mineral estates generally do not qualify

as property (under either Minnesota law or the Fifth

Amendment) until all required permits have been

obtained; instead, it held only that under the terms of

Minnesota Sands’ leases, Minnesota Sands never

satisfied the “specific conditions that govern

Minnesota Sands’ rights to use and possess the leased

premises,” and so never acquired the mineral estate

that Minnesota Sands claims was taken. Pet.App.36;

see Pet.App.36-39. That fact-specific state-law

question about the terms of Minnesota Sands’

particular leases does not warrant certiorari.

The Minnesota Supreme Court could not have

been clearer about the limited nature of its holding.

The court specifically recognized that Minnesota law

does acknowledge mineral leases as a valid property

interests that are protected against governmental

takings. Pet.App.33-34. But while mineral leases

generally may grant property interests, the court

explained, “[t]he property interests, if any, belonging

to the lessee … depend upon the terms of the lease.”

Pet.App.35. Here, the leases that Minnesota Sands

signed did not grant Minnesota Sands any immediate

property interest in the mineral estates involved.

Instead, the Minnesota Supreme Court concluded,

“the essential terms of these leases are subject to

specific conditions that govern Minnesota Sands’

rights to use and to possess the leased premises” and

under those conditions, “Minnesota Sands had no

right to use or possess the land until it was able to

engage in silica sand mining.” Pet.App.36-37. That

is, unless and until Minnesota Sands acquired the

permits necessary to begin mining silica sand, “the

leases reserved the rights to use and possess the

premises to the lessors in absolute terms.”

Pet.App.37.

As the decision below carefully explained, it

was “[t]hese lease terms”—not the county’s

permitting requirements—that were “the fatal defect

in Minnesota Sand[s’] takings claim.” Pet.App.37.

Because “the conditions precedent to acquiring

possession and control under any of the leases” were

never satisfied, the court concluded that Minnesota

Sands “does not have a fully-fledged leasehold

interest under Minnesota law.” Pet.App.38; see

Pet.App.43 (explaining that “under Minnesota law

Minnesota Sands never had a present, or even noncontingent, possessory right to use, or to possess and

control, the premises described in its lease

agreements”). Instead, “the agreements at most

grant Minnesota Sands expectancy interests that are

too speculative to support a takings claim.”

Pet.App.38. 5 The problem with Minnesota Sands’

In particular, because Minnesota Sands never actually

satisfied the conditions in its leases, it held at most a tenuous

contingent interest in acquiring the underlying mineral estate if

it eventually satisfied those required contractual conditions. As

takings claim, in other words, is not that the County’s

permitting requirements somehow deprived it of a

protectable property interest; it is that Minnesota

Sands never satisfied the conditions in its leases that

would have given Minnesota Sands a protectable

property interest in the first place. See Pet.App.42

(explaining that “[f]or a variety of understandable

reasons,” Minnesota Sands “never came close to

securing the possessory rights described in its lease

agreements”). 6

Notably, the Minnesota Supreme Court

specifically rejected the idea that its decision would

mean that local permitting requirements could

deprive property owners of protectable property

interests. As the court explained, its decision rested

instead on “the uncontroversial premise that the

government cannot ‘take’ property rights that a party

never had.” Pet.App.38 n.19. Because Minnesota

Sands was attempting to assert “rights that the

terms of the lease never granted,” it had no takings

claim. Pet.App.38 n.19. And as the court

emphasized, “the rights granted under the terms of

the lease agreements were determined by the

the Minnesota Supreme Court explained, that interest “was, at

most, a contingent-use interest under Minnesota law” that

Minnesota treats as an “expectancy” rather than a property

right. Pet.App.38, 42-43. Minnesota Sands does not challenge

that state-law holding.

Minnesota Sands’ contrary claim that the Minnesota

Supreme Court “recognized that Minnesota Sands owns valid

mineral estates under Minnesota law,” Pet.32, is simply not

true. In fact, the Minnesota Supreme Court’s opinion says the

exact opposite. Pet.App.34-38 (“Minnesota Sands does not have

a fully-fledged leasehold interest under Minnesota law.”);

Pet.App.42-43 (“Minnesota Sands never came close to securing

the possessory rights described in its lease agreements.”).

parties”; it was Minnesota Sands’ own contracts, not

county regulation, that “limit[ed] Minnesota Sands’

rights to a contingency interest.” Pet.App.38 n.19.

Put simply, Minnesota Sands’ second question

presented, like its first, is not actually presented by

this case. Nothing in the decision below holds that

local permitting requirements “eliminate the

existence of a federally protected property interest,”

contra Pet.i.; it simply holds that under the terms of

Minnesota Sands’ leases, Minnesota Sands never

acquired any such property interest from the lessors

because Minnesota Sands never fulfilled the

necessary conditions precedent. That state-law

question about the proper interpretation of these

specific leases hardly merits this Court’s review.

B. The Decision Below Does Not Conflict

With Decisions From Other Courts Or

With This Court’s Precedent.

Minnesota Sands’ attempt to portray the

decision below as conflicting with other courts or with

precedent from this Court is equally misguided.

There is no split between the Minnesota Supreme

Court’s decision and the scattered handful of lowercourt opinions from the past 30 years that Minnesota

Sands cites, and the judgment below in no way

contravenes any of this Court’s prior rulings.

To begin with, the limited nature of the

decision below makes clear that there is no lowercourt split here. The Minnesota Supreme Court did

not hold that there can be no protectable property

interest in a mineral estate subject to permitting

requirements, contra Pet.28, 32-33; in fact, it

specifically rejected that conclusion, see Pet.App.3334, 38 n.19. Instead, the Minnesota Supreme Court

held only that under the terms of Minnesota Sands’

particular leases, Minnesota Sands has not acquired

any such property interest. Supra p.11. The fact

that other courts reviewing different leases and

applying different state law have reached different

decisions does not create any conflict, much less one

warranting this Court’s review.

Even if the decision below could be read as a

broader statement about the kind of property

interests that Minnesota law recognizes, it still would

not be in tension with the other decisions Minnesota

Sands cites. This Court has been clear that the

federal Constitution does not create property

interests; instead, those interests “stem from an

independent source such as state law.” Lucas v. S.C.

Coastal Council, 505 U.S. 1003, 1030 (1992) (quoting

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,

577 (1972)); see, e.g., Webb’s Fabulous Pharms., Inc.

v. Beckwith, 449 U.S. 115, 161 (1980). In that context,

it is hardly surprising that courts applying different

states’ laws may reach different conclusions about

whether a particular interest constitutes property

under state law, and whether as a result the

purported property-owner has a valid takings claim.

In any event, the cases Minnesota Sands cites

are readily distinguishable. Minnesota Sands leads

with United Nuclear Corp. v. United States, 912 F.2d

1432 (Fed. Cir. 1990), where the Federal Circuit

found a regulatory taking of mineral leases when the

Secretary of the Interior delayed approving a

uranium mining plan—based on an invented “tribal

approval” requirement that “was not adopted or

included in any regulation”—for so long that the

leases expired. Id. at 1436. Unlike Minnesota Sands,

the plaintiff in United Nuclear had already satisfied

the necessary preconditions for its leases to “become

effective,” id. at 1434, and so already had an existing

and undisputed mineral leasehold interest that was

arbitrarily destroyed by the government’s unlawful

delay. No similar circumstances exist here.

Minnesota Sands turns next to a vacated trialcourt decision from the Court of Federal Claims, John

R. Sand & Gravel v. United States, 62 Fed. Cl. 556

(2004), vacated, 457 F.3d 1345 (Fed. Cir. 2006), and

vacatur aff’d, 552 U.S. 130 (2008). That vacated

decision not only has no precedential force, and not

only depended on Michigan law rather than

Minnesota law, id. at 564, but also specifically noted

that the defendant there was not arguing the only

question Minnesota Sands claims is relevant:

whether any existing property interest was “voided

by the lack of permits.” Id. at 568.

Minnesota Sands has no more luck with its

state-court cases. It begins with a decision from an

intermediate Pennsylvania appellate court on which

the Pennsylvania Supreme Court has granted further

review. PBS Coals, Inc. v. Dep’t of Transp., 206 A.3d

1201 (Pa. Cmwlth. Ct.), review granted 218 A.3d 373

(Pa. 2019) (table). That decision appears to turn

entirely on Pennsylvania law, and does not even

mention the Fifth Amendment. And once again, the

claimants there (unlike Minnesota Sands here) had

effective leases that “made them the owners of the

coal estate” that was allegedly taken. Id. at 1223. As

for the Ohio Supreme Court’ decision in Ohio ex rel.

R.T.G., Inc. v. State, 780 N.E.2d 998 (Ohio 2002), it

says nothing about whether permitting requirements

may affect a takings claim; instead, it addresses how

to define the relevant parcel for a regulatory takings

analysis where only part of the property was affected

by the alleged taking. Id. at 1006-09. Finally, the

intermediate Utah appellate decision in Diamond BY Ranches v. Tooele County, 91 P.3d 841 (Utah App.

2004), is entirely irrelevant. That case addressed

whether the denial of a conditional-use permit was a

regulatory taking, not whether an entity that lacks

any existing leasehold interest in the underlying

minerals can claim such a taking.

In fact, the only litigation Minnesota Sands

mentions that actually addressed a similar question

agrees with the decision below. See Pet.31 (citing

Seven Up Pete Joint Venture v. Montana, 2002 WL

34447228 (D. Mont. Dec. 9, 2002)). The relevant

decision in that litigation came three years later from

the Montana Supreme Court, which reviewed the

leases at issue in that case and found they “ma[d]e

clear that the [plaintiff] was obligated by contract to

secure an operating permit … before it would acquire

any ‘right’ to mine.” Seven Up Pete Venture v. State,

114 P.3d 1009, 1019 (Mont. 2005). Because the

plaintiff there “had not secured an operating permit

as required by the [leases] … it likewise had not

obtained a right to mine,” and so could not claim any

unconstitutional taking of a right it never held. Id.

That reasoning precisely (and correctly) mirrors the

Minnesota Supreme Court’s reasoning here.

There is not only no “confusion among the

lower courts,” but also no conflict with this Court’s

precedent. Contra Pet.33. Nothing in the Minnesota

Supreme Court’s decision undermines the settled

principle that the mere existence of a permitting

requirement is not itself a taking, contra Pet.33

(citing United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121 (1985)), or that the denial of a

permit can be a taking under appropriate

circumstances, contra Pet.33 (citing Koontz v. St.

Johns River Water Mgmt. Dist., 570 U.S. 595 (2013).

On the contrary, the Minnesota Supreme Court

specifically recognized that land-use regulations like

zoning laws do not necessarily constitute takings, but

that they may become a taking if they “go too far.”

Pet.App.32 (quoting Pa. Coal Co. v. Mahon, 260 U.S.

393, 415 (1922)).

Nor does the decision below remotely suggest

that these principles do not apply to mineral estates.

Contra Pet.34 (citing Suitum v. Tahoe Reg’l Planning

Agency, 520 U.S. 725 (1997); Hodel v. Va. Surface

Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 297

(1981)). Instead, the Minnesota Supreme Court

specifically recognized that a mineral estate is a valid

and separable property interest under Minnesota

law, and that “such partitions must be respected.”

Pet.App.33 (citing Washburn v Gregory Co., 147 N.W.

706 (Minn. 1914)). The court held only that under

the terms of the specific leases at issue, that property

interest had not yet been conveyed to Minnesota

Sands, because Minnesota Sands had not yet

satisfied the “specific conditions that govern

Minnesota Sands’ rights to use and to possess the

leased premises.” Pet.App.36; see Pet.App.30

(agreeing with the Minnesota Court of Appeals and

the trial court that “the property interests that

[Minnesota Sands] claims were taken by the County

had not yet accrued”). That holding—a plain-text

application of the specific terms of the specific leases

here—comes nowhere near contravening this Court’s

precedent.

For the same reasons, Minnesota Sands is

plainly wrong to claim that the decision below creates

a “shell game” that “seriously endanger[s]” Minnesota

property rights and “opens the door for local

governments to eliminate immensely valuable

mineral rights without paying any compensation at

all.” Contra Pet.34-35. Minnesota Sands is quite

correct to say that a mineral-rights owner is not

likely to succeed on a facial takings challenge to a

land-use regulation that requires a permit for

industrial mining; but it is quite wrong to claim that

the decision below categorically forecloses any

takings challenge to a subsequent decision denying

such a permit or banning mining altogether. Instead,

the decision below holds only that such a challenge

cannot be brought by a mineral lessee who has not

actually acquired the right to mine the property

under the terms of its own lease. Pet.App.35 (“The

property interests, if any, belonging to a lessee …

depend upon the terms of the lease.”). That holding

is entirely correct, poses no conflict with any decision

from this Court or any other, and does not warrant

review.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted this December 7, 2020.

Jay T. Squires,

Elizabeth J. Vieira

Counsel of Record

Kristin C. Nierengarten

Rupp, Anderson, Squires &

Waldspurger, P.A.

333 South Seventh Street

Suite 2800

Minneapolis, Minnesota 55402

612-436-4300

liz.vieira@raswlaw.com

WINONA COUNTY BOARD OF

COMMISSIONERS

WINONA COUNTY, MINNESOTA

IN THE MATTER OF AN AMENDMENT TO

THE WINONA COUNTY ZONING

ORDINANCE TO RESTRICT THE MINING

AND PROCESSING OF INDUSTRIAL

MINERALS IN WINONA COUNTY

PROCEDURAL HISTORY,

FINDINGS OF FACT, CONCLUSIONS,

AND ADOPTION OF ZONING

ORDINANCE AMENDMENT

The above-named matter came before the Winona

County Board of Commissioners (hereinafter referred

to as the "Board") for consideration of a proposed

amendment to the Winona County Zoning Ordinance

(hereinafter referred the as the "WCZO") to restrict

the mining and processing of industrial silica sand in

Winona County.

Based upon the Board's consideration of the entire

record in this matter which included the preparation

of a viability analysis of the proposed amendment; the

Winona County Planning Commission's (hereinafter

referred to as the "WCPC") review of the matter,

which included the WCPC's public hearings and

receipt of written comments on the proposed

amendment; the recommendation to the Board by the

WCPC to adopt a modified version of the proposed

amendment; subsequent public hearing held before

the Board, and written comments submitted to the

Board on the matter, the Board makes the following

decision:

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PROCEDURAL HISTORY

1. On April 26, 2016, the Board voted 3-2 to

forward to the Winona County Planning and

Environmental Services Department

(hereinafter referred to as the "Planning

Department") and the Winona County

Attorney for review as to viability pursuant

to WCZO Ch. 4, Sect. 4.3 and Ch. 2, Sect. 2.6,

a proposed amendment to the WCZO put

forward by the Land Stewardship Project

(hereinafter referred to as "LSP"). The LSP

· proposed amendment was titled: "Winona

County Zoning Ordinance Amendment

Regarding Industrial Frac Sand".

2. On June 14, 2016, in response to its

direction for a viability analysis of the LSP

proposed amendment, the Board received

from the Winona County Attorney, her

opinion, dated June 3, 2016, and titled: "A

LEGAL ANALYSIS OF THE VIABILITY OF

THE PROPOSED AMENDMENT TO THE

WINONA COUNTY ZONING ORDINANCE

TO RESTRICT CERTAIN MINING AND

PROCESSING OF SILICA SAND IN

WINONA COUNTY, MINNESOTA"

(hereinafter referred to as the "June 3rd

Opinion"). The June 3rd Opinion

determined that the LSP proposed

amendment was minimally viable. The June

3rd Opinion provided and recommended a

modified form of the LSP proposed

amendment that would be more viable in

terms of meeting the legal requirements for

amending an ordinance. That modified

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form of the proposed amendment was

entitled "Appendix B. Model Ordinance

Language from Land Stewardship Project

Modified for Greater Viability by Winona

County Attorney's Office after Viability

Review Directed by Winona County Board:

WINONA COUNTY ZONING ORDINANCE

AMENDMENT REGARDING INDUSTRIAL

MINERAL OPERATIONS" (as attached to

the June 3rd Opinion and hereinafter

referred to as the "Proposed Ordinance

Amendment")

3. At that same June 14, 2016 Board meeting,

the Board directed that the Proposed

Ordinance Amendment be referred to the

WCPC for review and recommendation,

pursuant to WCZO Ch. 4, Sect. 4.3 and Ch. 2,

Sect. 2.6.

4. Starting on June 30, 2016, and for multiple

hearings afterwards, the WCPC met, heard

public testimony, reviewed public written

comment, and discussed the Board-referred

Proposed Ordinance Amendment. Seventy-six

(76) persons testified at the June 30, 2016

public hearing. 203 written comments were

submitted to the WCPC and 35 additional

documents were submitted in response to

requests by the WCPC for info1mation.

5. On August 11, 2016, the WCPC voted 5 to 3

to recommend that the Board adopt a

modified form of the Proposed Ordinance

Amendment (hereinafter referred to as

"WCPC's Recommendation") that would allow

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up to six new industrial mineral mines to

operate in Winona County at any one time.

Each site could not exceed 40 acres in size

without there being reclamation of previously

mined acreage.

6. At its August 23, 2016 meeting, the Board

received the WCPC's Recommendation. The

Board then directed the Winona County

Attorney to review the WCPC's

Recommendation, provide legal analysis, and

discuss the procedure to follow going forward

regarding consideration of amending the

WCZO to address industrial mining and

processing in Winona County. The Board also

directed the Planning Department to work

together with the County Attorney to assist

in preparing a memorandum to the Board

regarding options and process going forward.

That memorandum, dated October 4, 2016,

was submitted to the Board for its review

(hereinafter referred to as the "October 4th

Memo").

7. The Board held a public hearing on October

13, 2016 to receive public hearing comment

on the WCPC's Recommendation. Written

public comment was also accepted by the

Board up until October 18, 2016. One

hundred and nine (109) individuals spoke at

the October 13, 2016 public hearing. 151

written comments were received and 5 other

documents were submitted for the Board's

consideration.

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8. At its regular meeting on October 25, 2016,

the Board took up the matter of considering

the various proposed amendments to the

WCZO on industrial mineral operations in

Winona County. The Board's October 25th

agenda materials included the October 4th

Memo, which contained legal analysis and

options for the Board to consider regarding

the decision before it. After extensive

discussion, the Board voted 3-2 "to adopt

County Attorney's Recommendation Option

A. Large Scale Industrial Silica Sand Mining

and Processing Prohibited". October 25, 2016

County Board Minutes. This was the Option

A contained in the October 4th Memo. The

Board also voted 3-2 "to direct the County

Attorney to include paragraph 1 (page 42

County Board Meeting Packet) into the

ordinance language and to submit the

ordinance on the November 22, 2016 County

Board agenda." October 25, 2016 County

Board minutes. The referenced paragraph 1

read: "Once the Board makes its decision,

whatever that decision is, the County Attorney

and Planning staff recommend that the

Board, prior to final vote, direct us to draft the

ordinance language to be adopted and an

order containing findings, conclusions and

order which supports and memorializes the

Board's decision. If no ordinance amendment

is adopted, there still needs to be an order

containing findings, conclusions and order

which supports that decision." October 4th

Memo at page 3.

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FINDINGS OF FACT

9. The Board finds that the issues before it

regarding the policy decisions it must address

in determining whether to adopt an

amendment and what form of amendment to

the WCZO regarding the mining and

processing of industrial minerals and

specifically silica sand mining and processing,

are not new to the Board and to Winona

County.

10. The historical record of silica sand mining

and processing before the Board goes back to

2011 when much of the southeastern

Minnesota region's local governments from

Goodhue County south along the Mississippi

River corridor through Wabasha and

Winona Counties on down to Houston

County and west into Fillmore and Olmsted

Counties were faced with dealing with an

explosion in the demand for silica sand to be

used in the hydraulic fracturing and

horizontal drilling process using pressurized

liquids and silica sand to extract gas and oil

from rock formations. See:

https://www2.usgs.gov/ hydraulic fracturing/.

11. In Winona County, the issue was brought

forward to the Board after several

conditional use permits for silica sand mine

operations were filed. Then as now, the

primary concerns relating to silica sand

mining, transport and processing operations

within Winona County are related to air

quality, water quality, trucking and road

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impact, traffic safety, and landscape

aesthetics. In September 2011, three

separate sites in Saratoga Township, Winona

County, filed petitions for the issuance of

conditional use permits to allow silica sand

mining operations.

12. In working with the applicants to prepare

their requests, Planning Department staff

had concerns about the WCZO in regard to

regulation of silica sand mining operations.

As a result, a meeting among county officials

was held on September 26, 2011, and the

Winona County Attorney's Office prepared a

memorandum evaluating the issues raised

and recommended a one-year moratorium to

study the impact of silica sand mining on the

public health, safety, and welfare as well as

the financial impact on the County public

works.

13. The three conditional use pe1mits were

initially considered at the October 20, 2011,

WCPC meeting and, after extensive public

hearing and discussion, the applications

were tabled to a future meeting. At the

November 17, 2011, WCPC voted to not hold

a public hearing on a moratorium regarding

silica sand mining and related operations.

14. On November 29, 2011, the Board discussed

silica sand mining conditional use permits

and moratorium options, authorizing two

public hearings-one before the WCPC and

one before the Board. At its December 15,

2011 meeting, the WCPC heard public

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comment regarding whether a moratorium

on silica sand mining should be imposed, but

took no action after two motions failed. The

Board held a public hearing on January 3,

2012, regarding the possible imposition of a

silica sand mining moratorium.

15. On January 10, 2012, the Board denied the

three pending conditional use permit

requests for silica sand mining operations

and enacted a three-month moratorium on

silica sand mining operations, to allow for

the completion of a land use planning study

by County staff. This moratorium became

effective upon its publication on February 1,

2012. During the moratorium, the Planning

Department completed a land use study

analyzing and referencing current land use

policies in Winona County and their

applicability for silica sand mining. At the

same time and working together with the

Planning Department, the Winona County

Attorney's Office analyzed the policy and

legal considerations relating to

Environmental Work Sheet (EAW) or

Environmental Impact Statement (EIS)

necessity for silica sand sites, roadway

pavement impact policy, fee assessment

options, and the conditional use permit

process.

16. The Board reviewed these analyses at its

April 24, 2012 meeting along with the

application and recommended conditions

from the Planning Department for future use

requests. The Planning Department provided

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a list to the Board of recommended

Conditions of Approval for silica-sand

mining. The WCPC and the Board retained

discretion about whether an environmental

review, either an Environmental Assessment

Worksheet (EAW) or Environmental Impact

Study (EIS), would be required. State and

federal requirements were also required to

be met for the Board to grant a Conditional

Use Permit (CUP). Out of that study came

the adoption of the County's Silica Sand

Mining and Processing Pre-Application

packet, the Road Use Agreement, and

numerous other documents that covered

legal and technical analysis of the silica sand

issue. The moratorium was allowed to expire

on May 1, 2012.

17.

On July 20, 2012, one of the previous

applicants, David Nisbit, resubmitted a

petition for a conditional use permit allowing

a 19.1 acre silica sand mining operation on

his property in Saratoga Township. The

WCPC heard the petition at its August 16,

2012 meeting and recommended the Board

approve the conditional use permit, with

conditions recommended by staff plus an

additional two conditions. The petition was

then considered by the Board on October 2,

2012, at which time it was tabled pending

the completion of an EAW. At the direction of

the Board, a public hearing was held on

March 21, 2013, regarding the Nisbit EAW.

Following that hearing, the Board on a 3-2

vote issued a negative declaration regarding

the need for an EIS. Concerned citizens then

A-9

petitioned the Minnesota Court of Appeals

for a writ of certiorari, challenging the

negative declaration for an EIS.

18. On June 4, 2013, the Board approved the

Nisbit conditional use permit, with the

conditions recommended by the Planning

Department and WCPC as well as two

additional conditions. The concerned citizens

subsequently petitioned the Minnesota Court

of Appeals for a writ of certiorari, challenging

the issuance of the conditional use permit.

The Court of Appeals consolidate the two

appeals. In a decision issued on June 16,

2014, the Court of Appeals affirmed the

Board's decisions regarding the EIS and the

conditional use permit, finding that the Board

considered all appropriate factors in making

both decisions. Since the expiration of the

moratorium in May 2012, no other petitions

for conditional use permits for silica sand

mining operations have been received in

Winona County.

19. In 2013, legislation was passed and signed

into Minnesota law to address silica sand

mining, processing and transportation

operations in Minnesota. See Minnesota

Statutes Sections 116C.99 through 116C.992.

The legislation directed state agencies to

provide local units of government with

technical assistance on regulation and

permitting. The legislation also set new

thresholds for environmental review of silica

sand related operations and required

development of a number of new regulations.

A-10

The agencies involved in implementing the

legislation included the Minnesota

Environmental Quality Board (hereinafter

the "EQB"), Minnesota Pollution Control

Agency, Minnesota Department of Natural

Resources, Minnesota Department of

Transportation, Minnesota Department of

Health, and Minnesota Department of

Agriculture. See: http://silicasand.mn.gov/

20.

The legislation also established silica sand

mining model standards and criteria and

defined terms, including "silica sand" and

"silica sand project":

116C.99 SILICA SAND MINING MODEL

STANDARDS AND CRITERIA.

Subdivision I. Definitions.

The definitions in this subdivision apply to

sections 116C.99 to 116C.992.

(a) "Local unit of government" means a

county, statutory or home rule charter city,

or town.

(b) "Mining" means excavating silica sand

by any process, including digging,

excavating, drilling, blasting, tunneling,

dredging, stripping, or by shaft.

screening, crushing, filtering, sorting,

processing, stockpiling, and storing silica

sand, either at the mining site or at any

other site.

(d) "Silica sand" means well-rounded,

sand-sized grains of quartz (silicon

dioxide), with very little impurities in

terms of other minerals. Specifically, the

A-11

silica sand for the purposes of this section

is commercially valuable for use in the

hydraulic fracturing of shale to obtain oil

and natural gas. Silica sand does not

include common rock, stone, aggregate,

gravel, sand with a low quartz level, or

silica compounds recovered as a by-product

of metallic mining.

(e) "Silica sand project" means the

excavation and mining and processing of

silica sand; the washing, cleaning,

screening, crushing, filtering, drying,

sorting, stockpiling, and storing of silica

sand, either at the mining site or at any

other site; the hauling and transporting of

silica sand; or a facility for transporting of

silica sand to destinations by rail, barge,

truck, or other means of transportation.

(f) "Temporary storage" means the

storage of stockpiles of silica sand that

have been transported and await

further transport.

(g) "Transporting" means hauling and

transporting silica sand, by any carrier:

(1) from the mining site to a

processing or transfer site; or

(2) from a processing or storage site

to a rail, barge, or transfer site for

transporting to destinations.

Subd. 2. Standards and criteria.

(a)

By October 1, 2013, the Environmental

Quality Board, in consultation with

local units of government, shall develop

model standards and criteria for

A-12

(b)

mining, processing, and transporting

silica sand. These standards and

criteria may be used by local units of

government in developing local

ordinances. The standards and criteria

shall be different for different

geographic areas of the state. The unique

karst conditions and landforms of

southeastern Minnesota shall be

considered unique when compared with

the flat scoured river terraces and

uniform hydrology of the Minnesota

Valley. The standards and criteria

developed shall reflect those differences

in varying regions of the state.

[emphasis added.]

The standards and criteria must include:

(1) recommendations for setbacks or

buffers for mining operation and

processing, including:

(i) any residence or residential

zoning district boundary;

(ii) any property line or right-ofway line of any existing or

proposed sheet or highway;

(iii) ordinarily high-water levels of

public waters;

(iv) bluffs;

(v) designated trout streams, Class

2A water as designated in the

rules of the Pollution Control

Agency, or any perennially

flowing

tributary

designated trout stream or

Class 2A water;

(vi) calcareous fens;

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(vii) wellhead protection areas as

defined in section 103I.005;

(viii) critical natural habitat

acquired by the commissioner

of natural resources under

section 84.944; and

(ix) a natural resource easement

paid wholly or in part by public

funds;

(2) standards for hours of operation;

(3) groundwater and surface water

quality and quantity monitoring

and mitigation plan requirements,

including:

(i) applicable groundwater and

surface water appropriation

permit requirements;

(ii) well-sealing requirements;

(iii) annual submission of

monitoring well data; and

(iv) storm water runoff rate limits

not to exceed two-, ten-, and

100-year storm events;

(4) air monitoring and data submission

requirements;

(5) dust control requirements;

(6) noise testing and mitigation plan

requirements;

(7) blast monitoring plan requirements;

(8) lighting requirements;

(9) inspection requirements;

(10) containment requirements for silica

sand in temporary storage to protect

air and water quality;

(11) containment requirements for

chemicals used in processing;

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(12) financial assurance requirements;

(13) road and bridge impacts and

requirements; and

(14) reclamation plan requirements as

required under the rules adopted by

the commissioner of natural

resources.

Subd. 3. Silica sand technical assistance

team.

By October 1, 2013, the Environmental Quality

Board shall assemble a silica sand technical

assistance team to provide local units of government,

at their request, with assistance with ordinance

development, zoning, environmental review and

permitting, monitoring, or other issues arising from

silica sand mining and processing operations. The

technical assistance team may be chosen from

representatives of the following entities: the

Department of Natural Resources, the Pollution

Control Agency, the Board of Water and Soil

Resources, the Department of Health, the

Department of Transportation, the University of

Minnesota, the Minnesota State Colleges and

Universities, and federal agencies. A majority of the

members must be from a state agency and all

members must have expertise in one or more of the

following areas: silica sand mining, hydrology, air

quality, water quality, land use, or other areas

related to silica sand mining.

Subd. 4. Considering technical assistance

team recommendations.

(a) When the technical assistance team, at the

request of the local unit of government, assembles

findings or makes a recommendation related to a

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proposed silica sand project for the protection of

human health and the environment, a local

government unit must consider the findings or

recommendations of the technical assistance team in

its approval or denial of a silica sand project. If the

local government unit does not agree with the

technical assistance team's findings and

recommendations, the detailed reasons for the

disagreement must be part of the local government

unit's record of decision.

(b)

Silica sand project proposers must cooperate

in providing local government unit staff and members

of the technical assistance team with information

regarding the project.

(c)

When a local unit of government requests

assistance from the silica sand technical assistance

team for environmental review or permitting of a

silica sand project, the local unit of government may

assess the project proposer for reasonable costs of the

assistance and use the funds received to reimburse

the entity providing that assistance.

History: 2013 c 114 art 4 s 91

21. Minnesota Statutes Section 116C.992 was also

adopted which reads:

TECHNICAL ASSISTANCE, ORDINANCE,

AND PERMIT LIBRARY.

By October 1, 2013, the Environmental Quality

Board, in consultation with local units of

government, shall create and maintain a library

on local government ordinances and local

government permits that have been approved for

regulation of silica sand projects for reference by

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local governments.

22. In response to the 2013 silica sand mining law,

the EQB created a "Toolkit" for Local

Governments to Use in Developing Silica Sand

Policies and Ordinances". See:

https://www.eqb.state.nm.us/sites/default/files/do

cuments/Tools%20for%20Local%20Go

vt%20approved%20March%2019 with Errata.pdf

23. The EQB and the other state agencies charged

with working on silica sand mining issues in

Minnesota continue their work, but a check of

the EQB website shows that no rules have been

issued. The 2015 Minnesota Legislature in a

special session modified Section 116C.991 of the

2013 law (Minnesota Statutes 116C.991-2013) to

extend the rulemaking time period. The law now

reads as follows:

116C.991 ENVIRONMENTAL REVIEW;

SILICA SAND PROJECTS.

(a) Until a final rule is adopted pursuant to

Laws 2013, chapter 114, article 4, section

105, paragraph (d), an environmental

assessment worksheet must be prepared for

any silica sand project that meets or exceeds

the following thresholds, unless the project

meets or exceeds the thresholds for an

environmental impact statement under rules

of the Environmental Quality Board and an

environmental impact statement must be

prepared:

(1) excavates 20 or more acres of land to

a mean depth often feet or more during

its existence. The local government is the

A-17

responsible governmental unit; or

(2) is designed to store or is capable of

storing more than 7,500 tons of silica

sand or has an annual throughput of

more than 200,000 tons of silica sand

and is not required to receive a permit

from the Pollution Control Agency. The

Pollution Control Agency is the

responsible governmental unit.

(b) In addition to the contents required

under statute and rule, an environmental

assessment worksheet completed according

to this section must include:

(1) a hydrogeologic investigation

assessing potential groundwater and

surface water effects and geologic

conditions that could create an

increased risk of potentially significant

effects on groundwater and surface

water;

(2) for a project with the potential to

require a groundwater appropriation

permit from the commissioner of

natural resources, an assessment of the

water resources available for

appropriation;

(3) an air quality impact assessment

that includes an assessment of the

potential effects from airborne

particulates and dust;

(4) a traffic impact analysis, including

documentation of existing

transportation systems, analysis of the

potential effects of the project on

transportation, and mitigation

measures to eliminate or minimize

A-18

adverse impacts;

(5) an assessment of compatibility of the

project with other existing uses; and

(6) mitigation measures that could

eliminate or minimize any adverse

environmental effects for the project.

2013 14 art 4 s 92; 1Sp2015 c 4 art 4 s 121

24. The Board finds that it has the authority to

enact amendments to the WCZO. Zoning

authority is derived from the general police

powers possessed by the State. See Village of

Euclid v. Ambler Realty Company Co., 272 U.S.

365 (1926); Dean v. City of Winona, 843 N.W.2d

249 (Minn. Ct. App. 2014). Local units of

government (e.g. counties, cities, townships, etc.)

are not "constitutional" entities but rather

legislatively created entities. Zoning authority is

granted to counties within the State of

Minnesota by Minn. Stat. § 394.21, which

provides that counties may canyon planning and

zoning activities to promote public health, safety,

morals and general welfare. The Board finds that

the record of this matter demonstrates more

than adequately that the mining and processing

of industrial minerals, and particularly,

industrial silica sand, as "silica sand" and "silica

sand project" are defined in Minn. Stat. Section

116.99 Subd. 1 (d) and (e) affects the public

health, safety and general welfare of the citizens

of Winona County.

25. The Board finds that counties have only such

power and authority as has been granted to them

by the State Legislature, which is confined to the

limits of their borders. The Board finds that it

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has the authority to enact zoning regulations to

govern land uses within the borders of Winona

County, outside of incorporated cities. The basis

for any land use decision must be related to the

specific impacts of activities within Winona

County, not on external activities or uses. The

Board finds that the decision it is making here is

related to the specific impact of industrial silica

sand mining and processing on Winona County

as it affects land use and the public health,

safety and general welfare of Winona County

citizens.

26. Minn. Stat. § 462.357 provides similar zoning

authority for cities, which may extend their

zoning authority to unincorporated areas within

two miles unless the county or town has adopted

zoning regulations. Townships are granted

concurrent authority with counties over zoning

outside of cities. Townships may implement

zoning regulations consistent with county

regulations, but may also be more restrictive.

Minn. Stat. § 394.33. In practice, this means

that counties have the authority to enact zoning

regulations for all areas of a county other than

incorporated cities. The townships included in

those unincorporated areas may elect to enact

more restrictive zoning regulations, but not be

less restrictive than the regulations enacted by a

county. Thus, any amendment to the WCZO

would impact the townships in unincorporated

areas, but incorporated cities would not be bound

by any amendments.

27. Minnesota Statutes Chapter 394.23 requires a

county to adopt both a comprehensive plan and a

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zoning ordinance, which should work together.

The comprehensive plan should serve as the

policy basis for the regulations contained in the

zoning ordinance, and the zoning ordinance

regulations should implement the comprehensive

plan. The Board adopted the Winona County

Comprehensive Plan in 2014 (hereinafter "2014

Comp Plan") which replaced the previous

Comprehensive Plan adopted in 2000. The 2014

Comp Plan was "intended to ... provide a

framework within which more specific

implementation strategies and programs may be

developed." 2014 Comp Plan, p. 5.

28. The general goals set by the Board and the

WCPC as part of the comprehensive plan update

process were to provide for:

a. An open process which encourages broadbased citizen participation and

intergovernmental cooperation which will

give meaning and suppo1t for the Plan;

b. The continued education of citizens on

County land use planning and regulation;

c. The promotion of civic involvement by all

citizens;

d. The protection of natural resources;

e. A sustainable and diverse economy which

recognizes the value of our citizens, the

Mississippi River, agriculture, natural

resources and natural beauty; and

f. The provision of affordable housing

throughout the County. 2014 Comp Plan

p.4.

29. The Board and the WCPC land use philosophy as

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stated in the 2014 Comp Plan is to "recognize the

area's culture, customs and economy along with

its unique topography, natural resources and

environment, by guiding present and future

County development and decision-making. The

purpose of the Comprehensive Plan is to sustain

and enhance these features by guiding present

and future County development and decision

making through on-going effective, efficient and

dynamic planning." 2014 Comp Plan, p.4. The

Board finds that the unique topography and

subsurface of Winona County as part of the

driftless area of southeastern Minnesota is

characterized by the "unique karst conditions

and landforms of southeastern Mim1esota [and]

shall be considered unique when compared with

the flat scoured river terraces and uniform

hydrology of the Minnesota Valley." Minn. Stat.

Section 116C.99 subd. 2 (a). The Board finds that

Winona County topography and subsurface is

recognized by Minnesota Statutes as such and

that standards and criteria which the Board is

adopting here for land use zoning ordinance

purposes meets the requirements of the statute

that "the standards and criteria developed shall

reflect those differences in varying regions of the

state."

30. The 2014 Comp Plan describes goals, policies and

implementation strategies for general growth,

agricultural areas, urban expansion areas,

economic development, rural development, rural

industrial, rural residential development,

natural resource protection, source

water/wellhead protection, open space and

recreation, community facilities, transportation,

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citizen involvement, and community health and

well-being.

31. The Board finds that no single goal, policy, or

strategy described in the 2014 Comp Plan will, or

should, govern what land use regulations should

be established. Rather, the 2014 Comp Plan

must be read as a whole. The various goals,

policies, and strategies in the 2014 Comp Plan

must be weighed by the Board when crafting

regulations and considering the adoption of the

Proposed Ordinance Amendment. As the 2014

Comp Plan states, it "is first and foremost a

statement of community values reflected in the

plan as goals. These goals are quite broad and

serve as a guide for decision-making, operating

and capital budgets, land use measures that

encourage or discourage growth, economic

development measures and steps for guiding

community growth and change. Understanding

the features of the County as well as past,

present and future trends are important

considerations for any comprehensive plan."

2014 Comp Plan at page 9.

32. The Board finds that the WCZO has the

following prescribed purposes for regulating the

use of land within Winona County (WCZO,

Chapter 2, Section 2.1):

a. Protecting the public health, safety, order,

convenience and general welfare.

b. Protecting and preserving agriculture.

c. Conserving the natural and scenic beauty

of the County.

d. Conserving natural resources in the

County such as streams, wetlands,

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groundwater, recharge areas, bluffs, steep

slopes, woodlands and soils.

e. Minimizing pollution.

f. Protecting existing businesses and

facilities.

g. Conserving energy by allowing solar and

earth sheltered housing and wind

conversion structures.

h. Promoting orderly development and

redevelopment of the residential,

commercial, industrial, and public areas as

well as the preservation of agricultural

areas.

i. Providing for the compatibility of different

land uses and most appropriate use of land

throughout the County.

j. Encouraging cooperation among

governmental agencies to help achieve land

use goals.

k. Fair and efficient enforcement of land

development regulations including the

discontinuation of existing uses.

l. Promoting in a financially responsible

manner orderly development of the

community to insure adequate levels of

service in areas of public safety, utilities,

transportation and administration.

m. Ensuring the fair and non-discriminatory

administration of this Ordinance by

allowing administrative decisions rendered

by the Planning Department to be appealed

through a recognized process.

33. The Board finds that in particular, a restriction

on the mining and processing of industrial

mineral operations in Winona County as the

A-24

term "industrial mineral operations" is defined in

the Proposed Amendment Ordinance would meet

the purposes of the WCZO and particularly,

Chapter 2, Section 2.1 and those parts listed as

a., b., c., d., and e. above.

34. The WCZO allows for amendments to the official

controls. WCZO Chapter 5, Section 5.4.1(1)

provides that such amendments "shall not be

issued indiscriminately, but shall only be used as

a means to reflect changes in the goals and

policies of the County as reflected in the

Comprehensive Plan or changes in County

conditions." When the Board first took up the

issue of applications for silica sand mining

permits in 2011, the County's Comprehensive

Plan in effect at that time was one adopted by

the Board in the year 2000. The Board finds that

much has changed in Winona County since the

year 2000 regarding many issues, including the

dramatic increase in demand for silica sand for

industrial purposes and then a precipitous drop

in that demand. In addition, the Board finds

there is observable and documented negative

impacts of industrial silica sand mining and

processing to the local economies and natural

state in neighboring counties in Wisconsin across

the Mississippi River in Pepin, Buffalo and

Trempealeau Counties based on comments

received at the WCPC August 8, 2016 Public

Hearing from William Mavity, a former Pepin

County Board Supervisor, and Jon Schultz, a

Trempealeau County Board Supervisor, District

5 as to their respective counties' experience

with industrial silica sand mines and the effect

on the local economy, including declining land

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values, community stress and social well-being,

and unfulfilled financial obligations and

promises of economic development boom for the

local communities from the silica sand mine

operations.

35. The decision of a county board to amend its

official controls such is considered here by Board

is a legislative decision of the Board as opposed

to a quasi-judicial decision of a county board

such as was the Board's review of the three

conditional use permit applications for silica

sand mining in 2011.

36. The Board finds that with respect to review of

legislative decisions, reviewing courts employ a

"rational basis test". To overturn a legislative

decision of a county board, the challenging party

must demonstrate that there is "no rational basis

related to promoting the public health, safety,

morals or general welfare" supporting the

decision. State, by Rochester Association of

Neighborhoods v. City of Rochester, 268 N. W. 2d

885 (Mim1. 1978). The rational basis test is the

most deferential standard of review applied to

local land use decisions. Legislative decisions

establish public policy. Unless the decision is

unconstitutional on its face or in application,

exceeds the scope of statutory authority, is

preempted or is procedurally defective, any

reason plausibly given to promote the public

interest is likely sufficient to support a

legislative decision and withstand legal

challenge.

37. The WCPC's role is in the review of proposed

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amendments or changes to the WCZO is an

advisory one to the Board. When a proposed

amendment to the WCZO is referred by the

Board to the WCPC for review and

recommendation, the WCPC can only return to

the Board with one of three recommendations: to

recommend approval; disapproval; or modified

approval of the proposed amendment. WCZO

Chapter 5, Section 5.4.3 (4). The WCPC

recommended to the Board a modified version of

the Proposed Ordinance Amendment sent to it by

the Board, which is referred to in this document

as the WCPC's Recommendation.

38. As found previously above, the Board's decision

on a proposed amendment to the WCZO is a

legislative decision, not a quasi-judicial one. To

be supportable under the law in this context, the

Board's decision must be reasonably related to

the goals, policies and strategies of the 2014

Comp Plan, the purpose of the WCZO, and has a

rational basis related to promoting the health,

safety, morals, and general welfare within

Winona County.

39. Winona County has the delegated authority to

regulate silica sand mining and processing

operations under its jurisdiction since these

operations affect land use.1 Under that statute,

counties may create zoning ordinances that

identify land uses that should be "encouraged,

regulated, or prohibited."2 Zoning must occur

Minn. Stat. § 394.21 (2015).

§ 394.25, subd. 2.

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through a comprehensive plan.3 A county's

zoning authority is not unlimited, and remains

subject to statutory and constitutional

limitations. It is therefore important to

sustaining the legislative decision of the Board

that a proposed amendment be tied to the values

of the County espoused in the Winona County

Comprehensive Plan and the current WCZO.

40. The Board has examined the various amendment

proposals offered for the Board's consideration in

this matter, including the LSP proposed

amendment, the WCPC's Recommendation, and

the Proposed Ordinance Amendment. The Board

finds that adoption and enactment of the

Proposed Ordinance Amendment with some

additions to the language for clarification and

added references to Minnesota law is consistent

with the values of the County espoused in the

2014 Comp Plan and the WCZO.

41. The Board finds that the LSP proposed

amendment does not directly establish the

necessary nexus between the values espoused in

the 2014 Comp Plan and purpose of the WCZO,

i.e. the rational basis, for restricting land use.

42. The main parts of the LSP proposed amendment

are the following:

a. The proposed amendment would add the

words "Frac Sand" and "Frac Sand

Operations" to the definitions section of

Chapter 4: Rules and Definitions of the

WCZO. Currently, the WCZO has no

§ 394.23.

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definition for "silica sand" or "frac sand".

b. The proposed amendment would also

add a section 10.11 to the WCZO to

specifically prohibit in all zoning

districts "frac sand operations".

43. The Board finds that an internet search of the

phrase "frac sand" will result in multiple

references to that phrase, but for the purposes of

the Board's consideration of the LSP proposal, it

used the Minnesota Department of Natural

Resources (DNR's) definition of "frac sand". The

DNR website page on "silica sand" describes

silica sand as consisting "of well-rounded sand

composed of almost pure quartz grains. Quartz,

or silicon dioxide (SiO2), is the most common

mineral found on the Earth's surface and is in

rocks like granite, gneiss, and sandstone. The

value of silica sand can be significantly higher

than sand and gravel used in the construction

industry. Silica sand is processed into frac sand,

a product used by the oil and gas industry."

[Emphasis added]. See http://www.dnr.state.

mn.us/silicasand/index.html.

44. The DNR website on silica sand states that "over

the past decade, a sharp increase in demand for

silica sand corresponded with a rapid expansion

of shale oil and gas development. An extraction

method called hydraulic fracturing is used to

access oil and gas from shale and limestone

bedrock which can require approximately 10,000

tons of frac sand per well" See http://www.dm.

state.mn.us/silicasand/index.html.

45. The LSP proposed amendment would prohibit

A-29

the use of "frac sand operations" in all zoning

districts in the county; meaning it would prohibit

extraction of silica sand, that when processed, is

suitable for use as a proppant for the exploration,

drilling, production, and recovery of oil and gas

and that is intended to be sold or used as such

according to the LSP proposed language.

46. The LSP proposed amendment also lacks any

language in the amendment provisions that

describes the purpose of the restrictions as they

relate to the purposes of the 2014 Comp Plan and

the WCZO. For these reasons, the Board finds

the LSP proposed amendment will not be

adopted by the Board.

47. The Board also examined the WCPC's

Recommendation which would limit the number

of new mining sites for the excavation or mining

of industrial minerals to six sites. It would also

limit the acreage size of new or proposed

expanded projects for the excavation or mining of

industrial minerals to not exceed 40 acres,

without the reclamation of previously mined

acreage. Like the Proposed Ordinance

Amendment, the WCPC's Recommendation

borrows language from the Florence Township

(in Goodhue County Minnesota) Zoning

Ordinance regarding the 6 mining site limit and

the 40 acre size limit. The Board finds that there

is nothing from the record of the WCPC's

hearings to support the 6 mining site limit and

the 40 acre size limit other than citing that the

Florence Township ordinance imposed these

limits. However, the Board finds that the

Florence Township ordinance's 6 mines and 40

A-30

acre limits were applied to construction mine

projects, not industrial mineral mine projects.

Therefore, those number and size restrictions are

not relevant to, nor do they support, using the

same restrictions for industrial mineral mine

projects were the Board to adopt the WCPC's

Recommendation.

48. The Board, however, does find that the Florence

Township Ordinance is a good example to follow

and is one from a local government jurisdiction

that was also faced with the surge in demand for

industrial silica sand in the early part of the

2010 decade forward. Florence Township adopted

a zoning ordinance that restricts excavation and

mining of silica sand for industrial uses by

setting out the purpose of doing so by tying it to

their comprehensive land use plan and by using

clear and concise definitions that distinguish

construction minerals from industrial minerals,

the latter of which includes silica sand. As part

of the County Attorney's viability analysis of the

LSP proposed amendment which was directed by

the Board, other jurisdictions' ordinances

including the Florence Township Zoning

Ordinance was reviewed. The Florence Township

Ordinance declares that "industrial minerals

mining land use operations are larger-scaled

industrial, consume more appropriated water,

require more concentrated heavy truck hauling

traffic to single destinations, and embrace other

differences than the mining of construction

materials." The ordinance goes on to state that

the "Minnesota Department of Natural

Resources recognizes this mining land use

process difference in its different rules for the

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leasing of state-owned lands for mining

industrials minerals and construction minerals."

Florence Township Zoning Ordinance.

49. The Board finds that the Proposed Ordinance

Amendment which contains language borrowed

from the Florence Township Zoning Ordinance

and modified to make it Winona County specific

com1ects the purpose of the ordinance to the

Winona County's Comprehensive Plan and the

WCZO as it relates to supporting the restriction

on the mining and processing of silica sand in

Winona County is a legally viable ordinance

amendment.

50. The Proposed Ordinance Amendment establishes

a clear rational basis for the amendment related

to the values espoused in the 2014 Comp Plan

and the purpose of the WCZO by:

a. Describing the purpose of the ordinance

provisions as they relate to the 2014 Comp

Plan, and;

b. Describing the reasons for restricting land

use as to mining of "industrial minerals"

and "processing of industrial minerals" in

Winona County as those terms are defined

in the Proposed Ordinance Amendment

with the addition of the statutory

definitions of "silica sand" and "silica sand

projects" from Minnesota Statutes 116C99,

subd. 1 (d) and (e), and;

c. Providing clear distinctions of restrictions

on certain mineral excavation, extraction,

and land alteration through the use of the

definitions of "Construction Minerals" as

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compared to "Industrial Minerals".

d. Adding language to clarify that the

Proposed Ordinance Amendment does not

intend to regulate interstate commerce

(including rail, barge, and truck traffic

hauling silica sand) or intercounty rail and

truck traffic hauling silica sand excavated

from other states or counties outside of

Winona County that is headed for the

terminal port in the City of Winona or

elsewhere, or processing of silica sand in

municipalities not under the zoning

authority of the County is also

appropriate.

For the complete June 3, 2016 County Attorney

Legal Viability Analysis, which contains the

Florence Township Zoning Ordinance and the

original Proposed Ordinance Amendment, go to

the following link: http://www.co. winona.mn.

us/sites/winonacounty.new.rschooltoday.com/files

/files/Private User/AISE N/Legal%20Analysis

%20of0/o20Viability%20of0/o20Proposed

%20Amendment- June%203%202016.pdf

51. Specifically, the listed purposes of the WCZO that

are of particular relevance to the Board's

consideration of the Proposed Ordinance

Amendment are the following:

WCZO Chapter 2: Intent and Purpose

2.1 Purpose. This is an ordinance

regulating the use of land within

Winona County [... ] for the purpose of:

1. Protecting the public health, safety,

A-33

order, convenience and general

welfare.

2. Protecting and preserving

agriculture.

3. Conserving the natural and scenic

beauty of the County.

4. Conserving natural resources in the

County such as streams, wetlands,

groundwater, recharge areas, bluffs,

steep slopes. Woodlands and soils,

5. Minimizing pollution.

And

2.2 Relation to Land Use Plan

52. The Winona County Zoning Ordinance

recognizes Winona County's Comprehensive

Land Use Plan as the policy to regulate land use

and development in accordance with the policies

and purpose herein set forth. WCZO Chapter 2,

Sections 2.1 and 2.2.

53. The 2014 Comp Plan sets out the following

provisions that the Board finds are particularly

relevant to how the Proposed Ordinance

Amendment is related to the purpose of both the

2014 Comp Plan and the WCZO. The Board

makes the general findings that each of these

community values are served by adopting the

Proposed Ordinance Amendment, and provides

specific findings as are noted in italics below:

The value statement regarding community

values as to:

Agriculture: Winona County recognizes the

A-34

cultural and economic importance of agriculture to

the community. Local decisions should reflect the

importance of maintaining agricultural practices that

are recognized as approved best management

practices and are conducted in accordance with

federal and state laws. Furthermore, local decisions

should support, maintain and sustain the vitality of

family farms, promoting policies that support Winona

County's strong tradition of locally owned agricultural

operations and the administration of best

management practices that consider the conservation

of soil, water quality, economic viability, innovative

practices, the promotion of local food systems and the

stewardship of the land and its resources to retain the

viability of agriculture for future generations. Page 12

of 2014 Comp Plan.

Resources: Winona County values the

importance of sound environmental practices that

promote the efficient use of all natural resources.

The use of resources should promote responsible

stewardship through sound conservation practices,

consideration of threats proven by peer review and

scientific research, the use of sensible and

economically reasonable solutions, and concern for the

aesthetics of the County. Page 12 of 2014 Comp Plan.

Sustainability: Winona County promotes a

sustainable community through the encouragement

of sustainable development. A sustainable

community uses its resources to meet current needs

while ensuring that adequate resources are available

for future generations. A sustainable community

seeks a better quality of life for all its residents while

maintain nature's ability to function over time by

minimizing waste, preventing pollution, promoting

A-35

efficiency and developing local resources to revitalize

the local economy. Page 13 of 2014 Comp Plan.

Policies: Regulate exploration and drilling

operations to minimize pollution problems and the

impact on agricultural areas and environmentally

sensitive areas. Page 15 and 33 of 2014 Comp Plan.

Source Water/Wellhead Protection:

Maintain, protect and improve the quality of

groundwater resources particularly the high-yielding

aquifers used for drinking water and connected to

surface hydrological features. Page 34 of 2014 Comp

Plan. 18.

The Board finds that the Proposed Ordinance

Amendment will protect groundwater resources in

Winona County's unique karst conditions and

landforms in -what the State has recognized through

Minn. Stat. Section 116C.99, Subd. 2 is unique -when

compared with the flat scoured river terraces and

uniform hydrology of the Minnesota Valley. The

Board also finds that according to the most recent

EQB's report on silica sand (dated March 20, 2013),

"the cumulative impacts to water quality (and

quantity) of multiple silica sand mines in close

proximity are not well understood. "EQB Report on

Silica Sand at page 29. See file:///C:/Users/atkls/

Downloads/23.%20March%20Final%20Silica%

20Sand%20report.pdf

The EQB report continues on to state that"

[d]epth to groundwater has not been widely

documented in southeastern Minnesota" and that

regarding "Long Term Effects in Karst Regions: More

information is needed on the long-term implications

A-36

for groundwater of mines in karst-prone regions of the

state. "Report at 61. For these reasons, the Board

finds that the Proposed Ordinance Amendment will

help to "maintain, protect and improve the quality of

groundwater resources in Winona County.

Industrial Sand Deposits: Discussion of

Winona County's geology would not be complete

without recognizing the growing interest in

industrial sands in the County. In recent years,

greater speculation relative to industrial sand

mining in Winona County has revolved around the

growing hydraulic fracturing process for oil and gas

wells. Winona County has three known high quality

sand types, attractive to these industries. They

include the St. Peter, Jordan and Wonewoc sand

formations. Page 60 of 2014 Comp Plan.

Natural Resource Protection: Winona

County is unique in that a substantial propo1iion of

its land can be classified as natural resource area.

Page 30 of 2014 Comp Plan.

Policies: Promote land management practices

by all levels of government that protect the natural

resources in the County, including streams, rivers,

wetlands, aquifers recharge areas, woodland and

forests, bluffs and agricultural areas. Page 31 of 2014

Comp Plan.

54. The 2014 Comp Plan recognizes and discusses

industrial sand mining in Winona County:

a. Regarding the goal to "ensure thorough review

and permitting in the extraction of mineral

resources which recognizes sound mining

management practices, mitigates adverse

A-37

public health, safety, welfare and

environmental impacts, recognizes and

accounts for the costs of impacts to road

infrastructure and administration, requires

careful consideration of traffic impacts, water

impacts, natural resource conservation,

encourages planning of future land utilization

and reclamation" at page 31 of 2014 Comp

Plan;

b. Regarding the policy to regulate exploration

and drilling operations in environmentally

sensitive areas at page 33 of the 2014 Comp

Plan;

c. Regarding recognition of Industrial Sand

Mining speculation on the rise in the County

due to high quality silica sand in surface and

subsurface locations, access to rail and port

facilities); at page 49 of the 2014 Comp Plan;

d. Regarding water impact, air quality,

transpo1iation safety and quality of life

impacts to neighbors); at page 51 of the 2014

Comp Plan; and,

e. Regarding recognition of Industrial Sand

Deposits in Winona County) at page 60 of the

2014 Comp Plan.

The Board made findings above regarding water

impact and water quality. Air quality and adverse

effects from particulates from silica sand mining and

processing were addressed by many persons both in

written and oral comment. Of note, Dr. Frank Bures,

a county resident and retired dermatologist from

Winona Health and Dr. Wayne Feyereisn, a county

resident and Mayo Medical Center physician (who

testified on his own behalf, not on Mayo's) spoke

about the adverse effects of silica particles to human

health. Dr. Feyereisn provided documented evidence

A-38

of the effects of silica particles that are so small they

pass into the lung tissue and can cause, among other

things, silicosis and lung cancer. The Board also

takes legislative policy notice of recently issued the U

S. Department of Labor's Occupational Safety and

Health Administration's (OSHA) standards as well

as the National Institute for Occupational Safety and

Health (NIOSH), "field studies [that] identified

overexposure to airborne silica as a health hazard to

workers. Large quantities of silica sand are used

during hydraulic fracturing. Sand is delivered via

truck and then loaded into sand movers, where it is

subsequently transferred via conveyer belt and

blended with other hydraulic fracturing fluids prior

to high pressure injection into the drilling hole.

Transporting, moving, and refilling silica sand into

and through sand movers, along transfer belts, and

into blender hoppers can release dusts containing

silica into the air. Workers can be exposed if they

breathe the dust into their lungs. NIOSH identified

seven primary sources of silica dust exposure during

hydraulic fracturing operations: • Dust ejected from

thief hatches (access ports) on top of the sand movers

during refilling operations while the machines are

running (hot loading). • Dust ejected and pulsed

through open side fill ports on the sand movers

during refilling operations. • Dust generated by onsite vehicle traffic. • Dust released from the transfer

belt under the sand movers. • Dust created as sand

drops into, or is agitated in, the blender hopper and

on transfer belts. • Dust released from operations of

transfer belts between the sand mover and the

blender; and • Dust released from the top of the end

of the sand transfer belt (dragon's tail) on sand

movers.

A-39

The Board notes that the sand referenced in the

NIOSH studies is the same sand that would be

mined, processed and transported from silica sand

mines in Winona County (and is currently mined and

processed in Wisconsin and in other parts of

Minnesota), thus exposing workers and residents in

Winona County to the same silica dust in the air that

workers in the oil and gas-fields are exposed to when

delivering that sand from sand movers to transfer

belt for use in the hydraulic fracturing process to

extract oil and gas.

See: https://www.osha.gov/silica/ and

https://www.osha.gov/dts/hazardale1st/hydraulic

frac hazard alert.pdf

55. As described previously above, amending the

zoning ordinance is a legislative, not quasijudicial, decision of the County Board. There is

great deference to a County Board's decision by

the courts as long as the record supports that the

decision is consistent with the County's

Comprehensive Plan and the purpose of the

County's Zoning Ordinance. The Proposed

Ordinance Amendment, with modifications as

attached hereto references the 2014 Comp Plan

and ties it and the general health, safety, and

welfare of the Winona County citizens to the

purpose of the ordinance restricting the mining

and processing of industrial minerals in Winona

County. It also makes a clear distinction between

land use restrictions on the excavation,

extraction, and land alteration for construction

mineral mining purposes versus industrial

mineral mining purposes. The amendment

would apply only to future industrial mineral

A-40

mining operation requests, not existing

permitted operations, such as the Nisbit mine in

Saratoga Township. Mining for construction and

agricultural bedding purposes would not be

affected by the amendment. The amendment

language as attached hereto is also modified to

clarify that the provisions will not affect

interstate commerce.

56. On the issue of "takings" that was raised by

individuals during the public hearing process,

the Board finds that whether a proposed

ordinance amendment, if adopted, would be a

federal and state constitutional violation of the

takings clause, can only be decided by a court, if

such a challenge to the action is put before it.

There is no set formula or firmly established test

to determine what constitutes a "taking", but

U.S. Supreme Court case law has identified

several factors that have particular significance

in consideration of the question. In reviewing a

takings claim, a court must review (1) the

economic impact of the regulation on the

person(s) suffering the loss, (2) the extent to

which the regulation interferes with distinct

investment backed expectations, and (3) the

character of the government action to assess

whether the complained of action effected a

taking of private prope1iy for public use. See

Penn Cent. Transp. Co. v. City of New York, 438

U. S. 104 at 124 (1978), 98 S. Ct. 2646 at 1026,

[other citations omitted for space considerations].

The Minnesota Supreme Court in the McShane

v. City of Faribault, 292 N. W. 2d 253 (1980) held

the "[t]he United States Supreme Court

A-41

recognized this distinction between "arbitration"

and "enterprise" regulations" in the Penn

Central case. McShane at 258. The Minnesota

Supreme Court defined enterprise regulations as

those governmental actions that are for the sole

benefit of a governmental enterprise, such as in

the McShane case, the Faribault Municipal

Airport. The government is involved in an

enterprise when it provides for or maintains

programs or facilities for which it must acquire

money, equipment, or real estate. In contrast,

when a government acts to resolve conflicts

among private interests by defining standards in

the community, it functions in an arbitration

capacity. Regulation that involves ordinances

design to effect a comprehensive plan are called

the "arbitration function" of government.

McShane at 258 - 259. In McShane, the

Minnesota Court also reiterated the U.S.

Supreme Court's Euclid decision as the one

establishing "that the right to use property as one

wishes is subject to and limited by the proper

exercise of the police power in the regulation of

land use, and such regulation does not

constitute a compensable taking unless it deprives

the property of all reasonable use." [emphasis

added J McShane at 257.

The Minnesota Supreme Court also

acknowledged in Zeman, a case decided after

McShane, that to determine an answer to a

taking question before it in that case, the court

had to "attempt the unenviable task of sorting

through the complex law of takings. Zeman v.

City of Minneapolis, 552 N. W. 2d 548 (1996) at

552at 552, quoting from Armstrong v. United

A-42

States, 364 U.S. 40, 49 (1960). In Zeman, the

Minnesota Court analyzed the question looking

at the Penn Central factors and held that "[a]

reviewing court must look to the nature of the

regulation with an eye on its purpose and the

probability of achieving that purpose with this

regulation. If the regulation is drawn to prevent

harm to the public, broadly defined, and seems

able to achieve this goal, then a taking has not

occurred." [emphasis added] Zeman at 554, citing

Keystone Bituminous Coal Ass'n v. DeBenedictis,

480 U. S. 470, 488-93 (1987). In Keystone, the

U.S. Supreme Court reiterated the long ago

recognized principle that "all property in this

country is held under the implied obligation that

the owner's use of it shall not be injurious to the

community," [emphasis added] Keystone at 491

quoting from Mugler v. Kansas, 123 U.S. 623

(1887), "and the Takings Clause did not

transform that principle to one that requires

compensation whenever the State asserts its

power to enforce it." [emphasis added] Keystone

at 491. See Mugler at 664.

57. The Board finds that on the issues raised

regarding jurisdiction and interstate commerce.

The U. S. Constitution provides that Congress

has the power to regulate commerce with foreign

Nations, and among the several States. U.S.

Constitution, Article I § 8, cl. 3. This clause is

more than an affirmative grant of authority to the

federal government, it also prohibits certain state

actions that interfere with interstate commerce.

Quill Corp. v. North Dakota By and Through

Heitkamp, 504 U.S. 298, 112 S.Ct. 1904, 119

L.Ed. 91 (1992). Most often this clause is invoked

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when a state attempts to shield in-state

businesses from out-of-state competition- a

challenged law is virtually per se invalid when it

discriminates against interstate commerce and

only survives when there is a legitimate local

purpose that cannot be served by reasonable nondiscriminatory alternatives.

Although states ate not precluded from imposing

reasonable restraints and restrictions on

interstate commerce, and although states and

local jurisdictions have the authority to enact

zoning ordinances under the state's police power,

it has also been established that a state may not

exercise that police power where the necessary

effect would be to place a substantial burden on

interstate commerce. Transcontinental Gas Pipe

Line Corp. v. Hackensack Meadowlands

Development Commission, 464 F.2d 1358, 1362

(U.S. Court of Appeals, 3rd Dist., 1983). In Pike

v. Bruce Church, Inc. the U.S. Supreme Court

suggested a three-stage test: first, the state or

local legislation must serve a legitimate local

public interest; second, it must affect interstate

commerce only incidentally; and third, if the first

two stages are met, whether the legitimate local

purpose justifies the law's impact on interstate

commerce. Tobacco Road v. City of Novi, 490

F.Supp. 537 (U.S. District Court, E.D. Michigan,

Southern District, 1979), citing Pike v. Bruce

Church, 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25

L.Ed.2d 164 (1970). Thus, making the record as

to the local purpose and findings of fact in

support of that purpose is crucial to

withstanding constitutional scrutiny.

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The Board finds that from a practical point of

view, the Proposed Ordinance Amendment, as

attached hereto with modifications, has a

significant local purpose, but one that does not

affect commerce within the port of the City of

Winona since the County's jurisdiction regarding

zoning and planning does not extend to

municipalities within the County except in those

townships that have delegated their zoning

authority to the County. It has been modified to

clarify that the provisions do not apply to the

interstate and intercounty transport of industrial

minerals coming into Winona County by rail,

barge or truck, or other means of transport. The

Board finds that it has been written so that it

does not affect commerce within the port of the

City of Winona or any other municipality where

silica sand is transported either by river barge,

train or truck, or processing facilities therein,

since the County's jurisdiction regarding zoning

and planning does not extend to municipalities

within the County except in those townships that

have delegated their zoning authority to the

County.

58. Regarding the due process concerns raised by

individuals during the public hearing process,

the Board finds that the 14th Amendment to the

United States Constitution provides that no

State shall "deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws." The right to devote land

to any legitimate use is "property" within this

clause. State of Washington ex rel. Seattle Title

Trust Co. v. Roberge, 49 S.Ct. 50,278 U.S. 116,

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73 L.Ed. 210 (1928). This clause protects against

the arbitrary restriction of lawful use of land.

Southern Co-op Development Fund v. Driggers,

527 F.Supp. 927, affirmed 696 F.2d 1347,

rehearing denied 703 F.2d. 582, certiorari denied

103 S.Ct. 3539, 463 U.S. 1208, 77 L.Ed.2d 1389

(1981).

In testing the constitutionality of a zoning

ordinance, the sole question is whether there is a

rational relationship between the ordinance and

the promotion of some aspect of a government

exercising its police power, a label which

describes the full range of legitimate public

interests. Stone v. Maitland, 446 F.2d 83 (Court

of Appeals, 5th Dist., 1971). Unless it is based

upon a suspect classification or unless it

infringes upon a fundamental right, zoning

legislation may be held unconstitutional only if it

is shown to bear no possible relationship to the

government's interest in securing health, safety,

morals or general welfare of the public and is,

therefore, manifestly unreasonable and

arbitrary. City of Highland Park v. Train, 519

F.2d 681 (Court of Appeals, 7th Dist., 1975). The

Board finds that the record suppo1is that the

ordinance is rationally related to protecting the

health, safety, and general welfare of Winona

County citizens.

CONCLUSIONS

The Winona County Board of Commissioners has

jurisdiction over the subject matter of this

proceeding pursuant to Minnesota Statutes

Chapters 116D, 375, and 394, and the Winona

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County Zoning Ordinance.

Based on the findings made herein, the Winona

County Board of Commissioners concludes that

adopting and enacting the Proposed Ordinance

Amendment with modifications as noted herein

and as attached hereto amending the Winona

County Zoning Ordinance to restrict industrial

mineral mining and processing in Winona

County is reasonably related to the goals, policies

and strategies of the 2014 Winona County

Comprehensive Plan and the purpose of Winona

County Zoning Ordinance.

3. The Winona County Board of Commissioners

concludes that adoption and enactment of the

Proposed Ordinance Amendment with

modifications as noted herein and as attached

hereto complies with Minn. Stat. Section 116C.99

subd. 2(a) in that the amendment establishes

standards and criteria for mining, processing,

and transporting silica sand that are different

from other geographic areas of the state and

reflects the unique karst conditions and

landforms of southeastern Minnesota which exist

in Winona County.

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ADOPTION OF AMENDMENT TO WINONA

COUNTY ZONING ORDINANCE

1. On voice vote, motion carried 3 (Commissioners

Kovecsi, Pomeroy, Olson) to 2 (Commissioners

Ward, Jacob) in favor of adopting and enacting the

attached Winona County Zoning Ordinance

Amendment Regarding the Mining and Processing of

Industrial Minerals in Winona County.

I certify that the above Ordinance was adopted by

the Board of Commissioners of the County of Winona

on November 22, 2016.

SIGNED:

WITNESSETH:

Marie Kovecsi

Chair

Winona County Board

of Commissioners

Kenneth Fritz

County Administrator

ll-22-16

Date

ll-22-16

Date

Drafted and Approved as to Form

On November 15, 2016 by

Karin L. Sonneman

Winona County Attorney

Approved as to Execution on November 22, 2016 by

Karin L. Sonneman

Winona County Attorney

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.