An Iowa sand mining company suing Trempealeau County is asking the court to hear the case in spite of a recent Wisconsin Supreme Court ruling that the county legally denied a permit for a proposed industrial sand operation.
The case was brought by AllEnergy Corp. of Des Moines and its subsidiary, AllEnergy Silica, Arcadia, which sought to operate a 265-acre frac sand mine and adjacent processing plant and rail loading terminal in the town of Arcadia.
In 2013, the Trempealeau County Environment and Land Use Committee voted 5-3 to deny the permit, saying AllEnergy’s application was rushed and incomplete; that the proposed mine raised environmental concerns and would have adverse effects on the landscape, wildlife and recreation; and that it posed risks to health, culture and social conditions.
AllEnergy sued the county in 2014, claiming the denial was arbitrary and singled out the company in violation of its constitutional rights. The county asked the court to dismiss the case, arguing that applying for a conditional use permit does not create a constitutionally protected property right.
AllEnergy claims it lost $3.5 million per month in revenue because of the denial and is seeking unspecified damages.
The case lingered as AllEnergy sought to overturn the permit denial in a separate court case that ultimately went to the state Supreme Court.
In an 88-page split decision released in late May, the Supreme Court upheld the findings of a La Crosse County judge on the grounds that AllEnergy has no intrinsic right to operate a frac sand mine, a conditional use subject to local government approval. Two of the four-justice majority took issue with part of the decision, saying the court overreached by venturing into the constitutionality of the county’s ordinances.
AllEnergy’s attorney Gary Van Cleve argues in a brief filed Thursday that the Supreme Court decision has no bearing on the company’s due process suit. The two cases address different legal questions, he writes, and because a majority of justices could not agree, the opinion fails to establish a precedent.
The county argues that a majority of justices agreed on two key issues: that the committee was within its jurisdiction to reject the permit and that property owners have no guaranteed right to a conditional use permit.
Van Cleve calls that a “patently dishonest” interpretation of the decision.
La Crosse County Circuit Judge Scott Horne is expected to rule in the coming weeks on whether the case may proceed.
AllEnergy is also seeking to open a 750-acre mine and processing facility in Jackson County, where a group of neighbors sued to block the $130 million project on the grounds that the dust, noise, lights and blasting will create a nuisance.
Horne has yet to rule on the company’s request to dismiss that case.
AllEnergy claims it lost $3.5 million per month in revenue because Trempealeau County denied a permit for a mine and a processing plant in the town of Arcadia. The company is seeking unspecified damages.