A group of western Wisconsin landowners have lost a court battle to block a proposed frac sand mine using a novel legal approach, according to the Lacrosse Tribune.
La Crosse County Circuit Judge Scott Horne dismissed a case brought by three families who sued to stop AllEnergy Corp. of Des Moines from opening the $130 million project in the town of Hixton on the grounds it would be a nuisance.
Greg Krueger and his co-plaintiffs claimed the 750-acre mine, processing plant and rail terminal would generate air, water, noise and light pollution, destroy the landscape, deplete groundwater supplies and unreasonably interfere with their right to peaceful enjoyment of their land.
One of two such cases filed by attorney Thomas Lister on behalf of Jackson County residents, it was one of the first such efforts to apply the idea of private nuisance – that an owner can’t use land in a way that harms neighboring property owners – to the industry, which began rapidly expanding in western Wisconsin during the past decade to supply fine-grained sand for use in oil and gas wells.
“The lawsuit calls into question inherent tensions in land use decisions,” Horne wrote in a ruling issued Monday. “Moreover, this lawsuit raises the question of who should assess the risk to property owners and determine in advance of any actual harm that a proposed land use will create a nuisance that is definite and certain.”
Horne noted that the town’s mining ordinance and a developer’s agreement with AllEnergy should be sufficient to protect its residents and that courts should not interfere “except in the clearest cases.”