A La Crosse County judge has dismissed a three-year-old lawsuit brought against Trempealeau County by an Iowa sand mining company denied a permit for a frac sand operation.
The case was brought by AllEnergy Corp. of Des Moines, which sought to operate a 265-acre frac sand mine along with a 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 company claimed it lost $3.5 million per month in revenue because of the denial and is seeking unspecified damages.
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.
Meanwhile the case lingered as AllEnergy sought to overturn the permit denial in a separate court case that ultimately went to the state Supreme Court, which in May issued a split decision upholding the lower court’s ruling in favor of the county.
AllEnergy argued the Supreme Court decision should have no bearing on the company’s due process suit.
In a ruling issued Friday, Judge Scott Horne noted that both the Court of Appeals and Supreme Court concluded the county was within its authority to deny the permit application and that AllEnergy did not show a basis for any violation of its rights.
Gary Van Cleve, the attorney representing AllEnergy, said the decision was “not surprising, but still disappointing.”
He said the company has not decided whether to appeal.
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.
That case is now headed to the Court of Appeals after Horne dismissed it in July.