A group of western Wisconsin landowners have lost a court battle to block a proposed frac sand mine using a novel legal approach.
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.
MERRILLAN, Wis. — Ron Baerbock had never heard of frac sand when he moved to Jackson County …
“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.”
If an actual nuisance arises, Horne said, he would have the authority to order damages or a modification to the operating regulations.
In an effort to address that concern, the plaintiffs filed a dozen affidavits from people living near other sand operations who complained of dust that causes chronic coughs and prevents them from opening windows, light, noise and vibration that keeps them up at night, cracked walls and fouled well water — all in spite of similar ordinances and operating agreements.
“There are some nuisance impacts that are inevitable,” Lister added. “You can’t protect people against the destruction of the landscape and loss of property value.”
Lister said he was pleased Horne recognized anticipatory nuisance as a legal doctrine but disappointed not to have the chance to argue it at trial. He anticipates Horne will dismiss a similar case in which another group of landowners are attempting to stop a 945-acre mine, processing and loading facility about six miles to the east between Black River Falls and Alma Center.
The plaintiffs are considering whether to appeal the dismissal, he said.
AllEnergy CEO Dean Sukowatey said he was “elated” by the decision and would be meeting with engineers and investors to determine a timeline to move ahead on the project. Sukowatey said he has the necessary construction permits in hand and a contract with “one of the largest oil service companies in the world.”
“We’re going to be racing to meet the contract,” he said.