By Chris Hubbuch
La Crosse Tribune
MERRILLAN, Wis. (AP) — Ron Baerbock had never heard of frack sand when he moved to Jackson County in 2010.
A Lutheran minister, Ron had spent the two previous two decades with his wife, Karen, doing missionary work in Latin America and were ready to retire somewhere they could indulge their passion for farming and be near their children and grandchildren.
Then a couple of years ago they started hearing rumors that neighbors were signing deals with a sand-mining operation but they didn’t know what to believe. Ron eventually learned that a Canadian mining company planned to dig sand from up to 735 acres of hills behind his home, clean, sift and dry it in a plant next door, and then use a nearly 2-mile conveyor belt to move the finished product to waiting rail cars at a loading site with nearly 10 miles of tracks. Their town and county boards, led by pro-mining factions, changed the zoning and granted the permits.
“I just about fell over,” Ron said.
The Baerbocks are among a handful of Jackson County residents who have turned to the courts in an attempt to block proposed frack sand operations, claiming they constitute a nuisance, before the first shovel of earth is moved.
According to complaints filed in Jackson County Circuit Court, two proposed mines with processing and loading sites would infringe on the rights of six families who live on or own neighboring properties. The plaintiffs are seeking an injunction to permanently block construction at those sites.
“It’s going to be noise, it’s going to be light, silica dust,” said Tom Lister, the attorney representing the plaintiffs.
The mine owners say the claims of pollution are unfounded and that it’s unfair to judge them by the actions of others.
“How would it remotely be appropriate to entertain a request to permanently enjoin a business operation based upon other competitor facilities?” argue attorneys for the company hoping to mine next to the Baerbocks.
A judge is scheduled to hear arguments this week before deciding if either case can proceed.
In filing anticipatory nuisance claims, Lister is applying a long-established legal principle in a way that has yet to be tested in regards to industrial sand mining in Wisconsin.
“No one has the right to use their land in a way that’s going to harm a neighboring property owner,” said Brian Ohm, a professor of urban planning at University of Wisconsin-Madison and the state specialist in land use law, environmental regulation and growth management for the UW Extension service. “It’s a fundamental notion we’ve had going back centuries.”
Lister is banking on the likelihood that he can convince the court that sand mines aren’t just a hardship for their neighbors. He instead plans to argue that these proposed operations are unnecessary given the proliferation of mines throughout western Wisconsin.
If the plaintiffs can show that a mine would result in a nuisance, the court must weigh their rights against the greater social benefits of the mine.
As the demand for frack sand has fallen and prices have plummeted, many of Wisconsin’s nearly 130 permitted mines have closed their doors, laying off hundreds of workers. Last month Chieftain Sand and Proppant filed for bankruptcy, saying the petroleum recession had favored sand producers located closer to drilling sites.
“There’s not any need for any more sand mines,” he said. “There already is an abundance… Many of these are inactive, even some of the major mines.”
But it’s not quite so simple.
“The sand market is a series of submarkets. There are companies in Wisconsin that are doing very well — I wouldn’t say very well, but they’re fine financially. . and there are some that are idle,” said Michael Wick, a mining consultant with the firm John T. Boyd Co. “You can’t just take them all in one lump sum.”
There are a number of circumstances that have changed since the North Dakota oil boom in the early 2010s sent sand prices skyrocketing.
Many of those wells, among the more expensive to operate, were idled as oil prices fell. That led to falling sand prices and forced less-efficient operations out of business.
Fracking has continued, although at a slower pace and in different parts of the country.
To compete in the current market, sand producers must be able to deliver their product to market as cheaply as possible, which means they must be able to load entire trains and get them to their destinations without switching rail lines.
At least a half dozen mining, processing and rail-loading operations have been built or proposed over the past several years along the U.S. Hwy. 53 corridor. The goal is to make use of high-efficiency shipping to get the fine-grained sand to oil and gas producers in Texas and Oklahoma, as well as Canada and the Appalachian region.
To bolster his lawsuit, Lister plans to call in expert witnesses to detail the physical, psychological and financial effects of living near a mine or processing operation, as well as former mine workers who will testify to dishonest practices and cheating by the industry.
He has also collected stories from people who live next to existing mines.
They complain of constant coughing. Trains blowing their horns every seven minutes for hours on end. Homes that vibrate, cracked walls and foundations. Patios sinking into the earth. Sand in their toilets. Appliances that give out after becoming clogged with sediment.
Dust coats their vehicles in the morning, and they can no longer open their windows.
They put blankets and black plastic over their windows because of the flood lights. They leave their televisions on all night to drown out the noise.
Mine owners counter that the nuisances encountered at other sand operations are irrelevant.
“We’ve submitted to the court an exhaustive comparison of everyone of the mines that was submitted,” said Dean Sukowatey, president of AllEnergy Sand, which is the subject of one of the suits. “This mine is much more regulated and restricted.”
But Lister said he’s interviewed clerks throughout western Wisconsin who said that mines were following the terms of developer agreements and permits, and yet neighbors still testified to a host of problems.
“You’re hearing from people saying they’re not protected at all,” Lister said.
In two separate cases, Lister has challenged the actions of Jackson County and two town boards, arguing that legislative malpractice should invalidate OmniTRAX’s conditional-use permit for the loading site, which straddles the towns of Adams and Alma.
Supervisors in the town of Adams have agreed that they violated open-meeting laws and made a decision to grant a zoning change after receiving misleading information. A supervisor in Alma has been charged with misconduct in office over allegations that he voted to grant a license to a mining company that had agreed to lease his land. The county’s district attorney has sought to void all the board’s votes on mining since 2012.
But it will be up to a judge to decide if conditional use permits issued by the county are valid.
OmniTRAX argues that victory makes the nuisance case moot. Lister counters there’s nothing to stop the company from going back to the county to re-apply.
Meanwhile, the Baerbocks are hopeful that anti-mining candidates can manage to win at least two of the three town supervisor seats up for election in April.
Lister notes his clients, who have spent tens of thousands of dollars on legal fees, aren’t seeking damages, which they might be entitled to if the mines are built and cause them damage. By seeking an anticipatory declaration, Lister said, they are potentially saving millions of dollars.
“Once a mine has invested $100 million, you can’t stop them,” he said.