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Appeals court to hear challenge to Winona County's sand mining ban

Winona County, Minnesota’s only county to ban the mining of silica sand for use by the oil and gas industry in hydraulic fracturing, goes to court Thursday to defend the ban.

Minnesota Sands LLC, which holds extensive mineral rights in southeastern Minnesota, is challenging the legality before the Minnesota Court of Appeals. Here’s a look at the ban and key issues before a three-judge panel:

The Ban

The Winona County Board adopted the ban in 2016 after public hearings that drew large crowds. The Land Stewardship Project spearheaded a 17-month grassroots campaign, citing risks to public health, air and water; damage to the scenic landscape of southeastern Minnesota; the impact on roads from heavy truck traffic and the loss of farmland.

Minnesota Sands LLC sued, arguing it was an unconstitutional restraint on interstate commerce and it made worthless the company’s mineral rights leases on nearly 2,000 acres of land in the county. The company, which has yet to start mining, says the silica sand there is worth between $3.6 billion and $5.8 billion. Winona County District Judge Mary Leahy rejected those arguments last November, so the company appealed.

The sand

Southern Minnesota and western Wisconsin have rich deposits of a form of silica that’s in high demand for hydraulic fracturing. The pure quartz sand from the region’s soft sandstone is strong enough to prop open cracks without being crushed, and the round grains are ideal to let oil and gas flow through.

Minnesota has a few active mines. There are over 90 in Wisconsin, the country’s top producer, where companies have taken advantage of that state’s friendlier regulatory climate, as well as the close proximity of its sand deposits to railroad lines that can carry it economically to the shale oil fields in North Dakota, Texas, eastern states and Canada.

Demand fell in 2015 and 2016 with the slump in oil prices. It has bounced back since last year as drilling rebounded, straining supplies and pushing up prices. Midwest producers are starting to face increasing competition from mines in Texas, where the sand isn’t necessarily as good but it’s cheaper.

The company’s arguments

Minnesota Sands says the ban violates the Commerce Clause of the U.S. Constitution, which gives Congress the power to regulate interstate commerce. The clause historically has been viewed as a restriction against state laws that discriminate against or unduly burden interstate trade. The company’s lawyers note that Winona County’s ordinance allows sand mining for local use in construction, landscaping and agriculture, but not for uses outside the local area.

“The federal Constitution creates a nationwide free-trade zone: state and local governments may not ban exports of goods produced within their boundaries. Unfortunately, Winona County has done that. ... That cannot stand,” they wrote in their brief.

They also wrote that the ban has devalued the company’s leases, amounting to a “taking” that entitles the company to compensation.

Minnesota Sands wants the appeals court to declare the ordinance unconstitutional and send the case back to the lower court to determine compensation.

The county’s response

Attorneys for Winona County say Leahy correctly concluded that Minnesota Sands failed to prove that the ordinance violates the Commerce Clause and that it doesn’t constitute a taking.

They wrote that the ordinance doesn’t discriminate because it draws a valid distinction between smaller-scale sand mining for local purposes such as construction and large-scale industrial sand mining for hydraulic fracturing. The environmental, public health, economic and other impacts are different, they said.

They also argue the ordinance isn’t a taking because Minnesota Sands never had the right to mine; because they company hadn’t gone through the permitting process, the ban didn’t take away any property rights the company already held.

They also said the company’s mineral leases still have value because the sand can be mined for local use. The company disputes that, saying its leases allow mining only for hydraulic fracturing.

“The federal Constitution creates a nationwide free-trade zone: state and local governments may not ban exports of goods produced within their boundaries.” Plaintiff’s brief

Boy shot in head by mother in Montfort continues miraculous recovery

Joey Slaight was on life support with a gunshot wound to his head more than two years ago when his guardian says somebody from Great Wolf Lodge messaged her on Facebook to offer the 8-year-old boy and his family a free vacation at one of its facilities after he got out of the hospital.

“I wanted to respond, ‘Don’t you know what happened to him?’” said Joey’s guardian and aunt, Andra Munoz. “So I was appreciative, but I thought that was never going to happen.”

It happened last weekend.

About 28 months after his mother, Morgan Slaight, shot Joey point-blank near his left eye with a .22-caliber handgun before turning the gun on his little brother, Jaxon, and herself in Montfort, Joey Slaight vacationed with his guardian and other family members at Great Wolf Lodge in Grapevine, Texas.

“It’s just incredible that he’s able to even go on a trip like this or run and laugh and have fun,” Munoz said. “I mean, it’s really sobering when you think about the fact that we made this trip.”

One month earlier, Slaight, now 11, was released from a pediatric brain injury rehabilitation facility in Benton, Arkansas, and moved in with Munoz, her husband, Jason, and their four children at their home in Jenks, Oklahoma, a suburb of Tulsa. Munoz said she plans to enroll Slaight in the public schools’ special-education program there.

Joey’s cognitive skills are around the first-grade level, according to Munoz. But he’s like other boys his age in many other ways, despite serious vision problems, she said. For instance, he loves to play and climb outside, his iPad is never far from his reach when he’s inside and it has helped him improve his reading and other skills. He’s also often quick with a hilarious one-liner.

Munoz compared Joey to Dory, the flighty but adorable blue tang fish from the animated movie “Finding Nemo.”

“Dory doesn’t really have a lot of stranger danger. With Joey, the logic part of his brain still functions to some degree, but when it comes to safety — like strangers or things that are dangerous like hot and cold and those kind of things — he doesn’t really understand,” Munoz said. “But a lot of kids don’t understand. We’re in a pickle because it’s like, ‘Is he ever going to learn?’ But you forget he’s still just a kid.”

Besides the entire Munoz family, Joey’s father, Tyler Slaight, also made the trip to Great Wolf Lodge in Grapevine. Tyler, who is Munoz’s brother, has made a remarkable recovery as well, according to Munoz. A recovering methamphetamine addict, Tyler has not done any drugs or consumed alcohol in two years, speaks regularly to recovery groups, and is moving closer to regaining custody of his son, she said.

“So the weekend was not just about the Great Wolf Lodge reaching out. It also was about our family getting to take our very first trip together because we’re in a better place with each other,” said Munoz.

Joey’s mother was also a recovering methamphetamine addict. A few months before the shootings, Morgan Slaight had separated from Tyler and moved with her children from Oklahoma to her sister’s home in Montfort, about 16 miles west of Dodgeville, according to the Grant County Sheriff’s Office. The shootings occurred on Jan. 2, 2015, the day after she returned from an emergency detention at Winnebago Mental Health Institute near Oshkosh after threatening to commit suicide, the Grant County Sheriff’s Office reported.

UW Hospital neurosurgeon Dr. Joshua Medow attended to Joey initially and was optimistic that Joey’s youth would help him recover from the major injury to his dominant hemisphere that controls speech, language, memory and motor skills. During surgery, Medow decided against removing the bullet fragments lodged in the bottom of Joey’s skull because of the potential further harm that could have created. He then lowered Joey’s body temperature, slowed his brain activity with pentobarbital and waited for him to respond.

At that point, Medow believed the key for Joey was how fast he could begin, and continue to, recover from his injuries. “I think that the rehabilitation that he got and the hard work he has put in has put him leaps and bounds ahead of where most anybody thought he would be at this point,” Medow said.

Once Joey woke up from the induced coma, he began progressing so fast that, within two months, his family got the green light to move him to a children’s hospital in Bethany, Oklahoma. Shortly after that, he was moved to the NeuroRestorative Timber Ridge in Benton, which is one of the only pediatric brain rehab facilities in the country.

Munoz has chronicled Joey’s progress on a Facebook page called Joey Strong. She included some photos of Joey learning to write left-handed, which showed his dominant hemisphere was changing to the right side of his brain. She also posted photos of him in obvious pain. She reposted one of them recently to remind Joey’s followers that his rehab included “pain you can’t stop. ... Through tears and pain and frustration, he fought.”

The Oklahoma Health Care Authority paid for most of Joey’s care until his release from the hospital in March, Munoz said. Now the burden of paying for his outpatient care falls on Joey’s family, which led Munoz to start a GoFundMe page to help pay the bills.

So far, Joey is continuing to improve because “he’s home with his family and he’s got the love component,” Munoz said.

Some big hurdles are still out there that could impede Joey’s progress. For instance, Joey still doesn’t know about the shootings, and doctors have advised family members not to force the issue, Munoz said.

“I think it’s just a matter of time,” Medow said. “I think he’ll recover cognitively enough to be able to understand it, and I just hope he’s able to cope with it OK.”

Medow remains as optimistic about Joey’s recovery as he was when he first encountered him shortly after Joey was shot. He said he meets many of his patients for the first time after they’ve had a traumatic brain injury and are in a coma, but they aren’t formally introduced to each other until the patient recovers and meets Medow at his clinic.

He’s waiting for a similar moment with Joey. “So even though I met him before, I hope to meet him again,” Medow said.

“I think that the rehabilitation that he got and the hard work he has put in has put him leaps and bounds ahead of where most anybody thought he would be at this point.” Dr. Joshua Medow, UW Hospital neurosurgeon

“Through tears and pain and frustration, he fought.” Munoz posting on Joey Strong Facebook page


Local
La Crosse Diocese announces new Catholic parish to serve Hmong community

The Catholic Diocese of La Crosse announced Sunday that it will form a new parish in Wausau to serve the Hmong community.

Callahan

“It’s with great hope and joy that I welcome our newest parish, whose mission is to bring the Catholic tradition to the Hmong community,” Bishop William Patrick Callahan said in a press release Sunday afternoon.

The diocese plans to secure a worship space and name the new parish by the end of the year. The Rev. Alan T. Burkhardt has been assigned as the parish’s full-time pastor.

The La Crosse Diocese this year is celebrating its sesquicentennial and cited its history of ministering to immigrants in its announcement of the new parish:

“Since the founding of our diocese in 1868, we have been home to immigrants. In the early days we welcomed, among others, the Irish, German, Polish and French settlers. ...

“After the end of the Vietnam War and the civil war in Laos, Hmong refugees first began to arrive in our diocese. In 1987, Bishop John Paul, the seventh bishop of the Diocese of La Crosse, primarily in an effort to inspire the people of this region, promulgated the pastoral letter ‘On the Christian Welcome of the Hmong Population Among the Faithful of the Diocese of La Crosse.’”

The bishop’s letter documented Hmong allegiance to the United States during the Vietnam War, and urged Catholics to attend to the refugees’ needs.

“Today we are proud to continue in our history of reaching out to peoples who have not encountered Jesus and the gospels,” the statement issued Sunday said. “The Diocese of La Crosse is honored to be involved in this missionary work by which we ‘welcome the Stranger’ by bringing our Catholic tradition and faith to the Hmong people who have made our diocese their home.”


Special report: 150th anniversary of the Catholic Diocese of La Crosse

Callahan