Wisconsin Supreme Court Rejects AllEnergy’s Challenge

In a 4-3 decision, the Wisconsin Supreme Court ruled that Trempealeau County was justified in rejecting Iowa-based AllEnergy’s proposal for a 550-acre frac sand mine, processing and rail-loading facility outside Arcadia, Wis.

According to the Winona Post, the attorney for AllEnergy, Gary Van Cleve, is also representing would-be miners in a Minnesota lawsuit challenging Winona County’s recent frac sand ban. A second lawsuit filed by AllEnergy against Trempealeau County is still pending.

Applicants are not entitled to get conditional use permits (CUPs) and citizens’ concerns constitute “substantial evidence” that can justify permit denial, Justice Shirley Abrahamson wrote in the court’s lead opinion. The ruling affirmed decisions by the circuit and appeals courts in favor of the county.

“I continue to contend that our client played it by the book, and they did everything that was asked of them,” Van Cleve said. “What ultimately ended up happening was there was a lot of emotional sentiment that drove the decision to deny, and unfortunately that was upheld by the courts.”

In 2013, neighboring citizens testified that they experienced water quality problems from past mines and said that the proposed mine would threaten water quality, risk flooding, and hurt their property values. Engineers and consultants for AllEnergy presented information to assure local leaders that there would not be problems, and the Trempealeau County Environment and Land Use Committee (ELUC) drafted further conditions to try to prevent and mitigate any negative effects from the mine.

The ELUC ultimately voted 5-3 to deny AllEnergy’s permit application. The denial came following citizen opposition to other large mines permitted in Trempealeau County and a wave of electoral victories for mining opponents.

AllEnergy sued the county, arguing that citizens’ concerns were not merited, and that, because its CUP application met all the necessary standards and would have been subject to conditions mitigating harm, the county had no legal reason to deny a permit.

By listing frac sand mining as a conditionally allowable use in the zoning ordinance, the elected County Board had already decided that mining is acceptable, AllEnergy attorneys argued. Company lawyers contended that the unelected ELUC exceeded its authority by deciding that, despite what the ordinance says, the ELUC did not want any more mining in the county.

The Wisconsin Supreme Court was somewhat divided on this case. Three justices backed AllEnergy’s claims. Two justices sided with the county, but in a more narrowly written opinion that did not address whether there was substantial evidence. One other justice joined Abrahamson.

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