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Appeals court takes up challenge to Winona County's sand mining ban

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Empty lot
An empty lot sits where stockpiles of sand used to be a year ago in Winona, Minn., April 3, 2013.
Alex Kolyer for MPR

The tiny particles of silica sand found in Winona County are very round and hard — perfect for "fracking," the process of extracting oil and gas from below ground.

But Minnesota Sands LLC, which leases about 3,000 acres in the area, can't mine the sand because Winona County banned sand mining for industrial purposes in 2016, citing environmental and health concerns.

It's still allowed for construction and agriculture, among other local uses.

Minnesota Sands will argue in an appeals court hearing Thursday that the ban violates the Commerce Clause of the U.S. Constitution and that the ban devalued its land leases.

"We are appealing because the ban is a significant threat to anyone who benefits from the use of their land," said Minnesota Sands spokesperson Mike Zipko. "Allowing it to remain in place also creates a very real risk that Winona or other counties will build on this by passing or imposing other future unconstitutional restrictions on landowners."

Winona sand gif
An empty lot now sits where stockpiles of sand -- once dubbed "Mt. Frac" -- used to be near the Winona County Justice Center in Winona, Minn.
Before photo: Andrew Link | Winona Daily News via AP. After photo: Alex Kolyer for MPR

But the Winona County District Court already dismissed a similar challenge late last year.

Land Stewardship Project policy organizer Johanna Rupprecht said the county's moratorium is legal. Her group helped organize support for the ban.

"This is really clearly in line with the rights that a local government has in using its zoning powers," she said. "That's why zoning exists: For the government to have the right to say no to things if they are harmful and destructive."

Both Minnesota Sands and Winona County will have about 15 minutes each to make their case to a three-judge panel.