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Column: Regulating Mining in Goodhue County

As Goodhue County attorney, I have been involved with assisting the Goodhue County Board and the County Planning Advisory Commission in their review of issues surrounding silica (frac) sand mining, processing and transportation here.

The Goodhue County zoning ordinance contains many provisions restricting or "banning" mining in sensitive areas or where it conflicts with existing uses such as within 1,000 feet of residences. The county is considering increasing restrictions to further protect the public and the environment.

I recently wrote a detailed legal opinion intended to help the board, the PAC and the mining subcommittee refine and finalize proposals for additional new amendments to the Goodhue County Comprehensive Plan and Zoning Ordinance provisions regulating all types of non-metallic mineral mining, including silica sand mining. After reviewing that legal advice, the board voted to make the legal opinion public. The entire opinion is available online at www.co.goodhue.mn.us.

Over the past 24 months, the PAC and the Goodhue County Mining Study Committee have heard presentations from many experts - personnel from regulatory agencies and mining interests. Thousands of pages of reports, maps and documents have been gathered at the Goodhue County Mining Study Committee website -- www.co.goodhue.mn.us and click on Mining Committee on the left hand side of the page.

Please review this material in conjunction with the legal opinion to learn more about the factual background of this topic.

Public hearings will be scheduled to allow comment on this very important range of issues affecting our area.

What follows is an abridged version of the opinion without some of the legal jargon. This shortened version is intended to aid the public in understanding issues and participating in the ongoing policy discussions helping to shape the PAC's and the Goodhue County Board's decisions.

Zoning authority

Goodhue County has the legal authority to regulate mining of non-metallic minerals within Goodhue County, Minnesota, outside of incorporated cities. This regulatory authority is limited by statutes that prescribe how the county may exercise its authority, by statutes that delegate the regulation of some aspects of non-metal mining to federal or state agencies, and by provisions of both the Minnesota and the U.S. Constitutions that prohibit taking private property for public use without compensation.

The U.S. Constitution provides in the Fifth Amendment:

"No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

This obligation is made applicable to state and local governments by the Fourteenth Amendment to the U.S. Constitution.

The Minnesota Constitution provides similar but distinct requirements in Article 1, Section 13.

The U.S. Supreme Court and the Minnesota Supreme Court have issued several opinions interpreting their respective constitutional language.

"The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property." Lingle v. Chevron, U.S.A., Inc., 1255.ct.2074 (2005) (citing Pennsylvania Coal Company v. Mahon, 260 U.S. 393 (1922).

Additionally, and more problematically, the U.S. Supreme Court in Pennsylvania Coal Company v. Mahon, 260 U.S. 393 (1922) offered this formula stating that "property may be regulated to a certain extent, (but) if regulation goes too far, it will be recognized as a taking."

Following principles enunciated in these cases, courts have found that takings requiring compensation have occurred when, 1) regulation requires an owner to allow a physical invasion of his or her property, however slight, and/or, 2) regulation denies the owner of all economically viable use of the property.

In 1978, the U.S. Supreme Court decided the case of Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978). In this case, historical preservation regulations of the New York City regulated and limited the development options for the Penn Central Railroad Station. The U.S. Supreme Court used a three-part test to analyze the impact of regulations on the property as a whole. The Court considered:

1. The economic impact on the owner.

2. The extent to which the regulation interfered with the legitimate, investment-backed expectations of the owner.

3. Whether the regulation resulted in the equivalent of a physical invasion of the property.

All of these legal standards, statutes and laws must be considered in making decisions about the regulation of non-metallic mineral mining.

Jurisdiction

What may Goodhue County legally do to regulate mining of silica sand on property under its zoning jurisdiction?

Goodhue County may continue existing regulations previously adopted pursuant to comprehensive planning and applied to all mining operations in Goodhue County. This means that existing restrictions banning new mining from bluff faces, residential areas and other designated protection zones may continue and that existing non-conforming mines may be prohibited from reopening if the mining use is discontinued.

The County Board may consider expanding such protected areas if it finds that there are sound factual and policy reasons for such an expansion. New scientific facts developed by researchers, regulators, state or federal authorities may be used to support additional regulatory restrictions which the Board deems necessary to protect the public health, safety, and welfare.

However, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), the U.S. Supreme Court established the principle that subsurface mineral rights had value even if the mining would put the surface property owners' lives and home at risk.

The Goodhue County mining subcommittee members have conducted extensive review of existing information and policy alternatives. Along with the Planning Advisory Commission and the County Board, they have sought and received advice and comment from experts and the public. The record of proceedings is online.

The Land-use Department has met and consulted with representatives of each town board individually and a joint meeting for all township representatives and the public occurred April 25.

The County Board, on the recommendation of the PAC, has already adopted many changes in the Goodhue County Zoning Ordinance at the conclusion of the first year of the Goodhue County mining moratorium. Those changes increased setbacks from neighboring residences and established very comprehensive requirements for providing information for site review of any proposed new mine. They also established requirements for collecting data before and after a mine begins operation. Additionally, the ordinance now provides for negotiations with any operator of a proposed new mine to attempt to achieve a development agreement that would more completely address issues unique to the property, such as road wear, traffic flow, surface water impoundments, and potential adverse impacts on neighboring property values and wells.

Some areas suggested for possible additional regulation include sand-washing operations, concentrations of multiple mines, trout streams, environmentally sensitive areas, residential areas along haul routes, historic or culturally significant areas and view sheds. The board may wish to designate zones, overlay districts or setbacks from protected areas or similar mining operations.

Any regulations should focus on the elements of the mining operation over which the county has direct authority.

Some types of non-metallic mineral mining are valuable and necessary components of Goodhue County's resource infrastructure. Many town boards specifically requested consideration for the effects county mining regulations could have on the availability and price of road materials sold to township government. The Goodhue County Public Works Department expressed similar concerns.

Subcommittee indicated that mining silica sand raised issues of greater concern than existing mining of aggregate and limestone. They cited concerns about health and safety posed by pure crystalline silica, the scale of mining currently necessary for economic viability, the reduced cost-to-benefit ratio of a type of extractive mining which exported very large quantities of product while leaving increased environmental costs behind.

Some members of the committee and many members of the public were particularly concerned about the use of large quantities of water from the aquifer, impounding large quantities of surface water treated with coagulants and flocculants and the prospects for quantities of crystalline silica dust to contaminate ambient air adjacent to silica sand mining, processing, transportation and storage sites.

Some committee members pointed out that certain aspects of mining pose concerns to one extent or another in all non-metallic mining situations. Blasting, truck traffic, road dust, hours of operation, wash stations, stockpiles of mined materials, overburden and stored equipment are common regulated components of mining as it occurs in Goodhue County.

The Minnesota Department of Natural Resources, Public Utilities Commission and Department of Transportation and the federal Environmental Protection Agency, Occupational Safety and Health Administration, Mine Safety and Health Administration and U.S. Department of Transportation regulate some aspects of non-metallic mineral mining and transportation in Minnesota.

The Planning Advisory Commission and the County Board have experience and expertise in developing requirements for conditional-use permits coupled with an updated comprehensive plan and zoning ordinance developed during the moratorium process. Utilizing this existing expertise in the public zoning regulation process is the most efficient, effective, and legally defensible way to protect Goodhue County's resources and its citizens of the present and the future.

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