Connaughty v. Winona County Board of Commissioners

849 N.W.2d 71, 2014 WL 2681761, 2014 Minn. App. LEXIS 62
CourtCourt of Appeals of Minnesota
DecidedJune 16, 2014
DocketNos. A13-0745, A13-1198
StatusPublished
Cited by3 cases

This text of 849 N.W.2d 71 (Connaughty v. Winona County Board of Commissioners) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connaughty v. Winona County Board of Commissioners, 849 N.W.2d 71, 2014 WL 2681761, 2014 Minn. App. LEXIS 62 (Mich. Ct. App. 2014).

Opinion

OPINION

CONNOLLY, Judge.

Relators challenge the Winona County Board of Commissioners’ decisions to issue [74]*74a negative declaration on the need for an environmental impact statement and a conditional-use permit for a proposed silica sand mining project. Relators argue that (1) the negative declaration was based on an error of law because the county did not consider the cumulative potential effects of the project, (2) the negative declaration is not supported by substantial evidence in the record, and (3) the conditional-use permit was based on inadequate environmental review. We affirm.

FACTS

Relators are residents of Winona County who are concerned about the potential environmental effects of a proposed silica sand mining project located in the county. Respondents are the Winona County Board of Commissioners (the county board), which is both the responsible governmental unit (RGU) charged with conducting the environmental review and the permitting authority for the conditional-use permit (CUP) at issue; David and Sherry Nisbit, who own the land where the project will be located; and Tom Rowek-amp, who is the CEO of IT Sands LLC and the Nisbits’ mining partner.

In 2011, David and Sherry Nisbit submitted an application to the county board for a CUP for their proposed silica sand mining project. The Nisbit Mine Project (the project) is proposed on 19.1 acres of the Nisbits’ land in Winona County. The primary purpose of the project is to remove silica sand for export purposes. The silica sand will be mined and then sold to the Brannt Valley load-out and sand-washing facility in Winona. From there, it will be shipped out of state to be used as a proppant for hydraulic fracturing of hydrocarbon wells.1 The project does not address final sand washing or processing, rail loading, or interstate transport, because these processes will take place at existing facilities in Winona. The project is expected to last for approximately two to three years, after which the site will be returned to grassland.

In December 2011, the county board imposed a moratorium on CUP applications to fully study the potential environmental effects of silica sand mining. On May 1, 2012, Winona County lifted the moratorium; the Nisbits resubmitted their CUP application on July 20.

On August 16, the Winona County Planning Commission (the planning commission) held a public hearing on the Nisbits’ CUP application. At the hearing, the planning commission heard nine public comments and reviewed 35 conditions that the planning department recommended for the project. After reviewing the proposed conditions, the planning commission added two conditions to the permit. With these 37 conditions in place, the planning commission voted 6-3 to recommend approval of the project to the county board.

After the planning commission’s vote, the county board, acting as the RGU, prepared an environmental assessment worksheet (EAW) for the project. On January 15, 2013, the county board submitted the EAW to the Environmental Quality Board (EQB). Following a 30-day public-comment period, the planning commission held a public hearing concerning the need for an environmental impact statement (EIS) [75]*75for the project. The planning commission reviewed IB public comments and 54 written comments. On March 21, it recommended that the county board issue a negative declaration on the need for an EIS.

On April 2, the county board held a meeting and concluded that an EIS was not required for the project. On June 4, the county board held a meeting to discuss the CUP for the project. The county board added two more conditions and granted the CUP, requiring the Nisbits to comply with 39 conditions.

On April 29, relators filed a petition for a writ of certiorari to challenge the negative declaration for an EIS. On July 1, relators filed a petition for a writ of certio-rari to challenge the county’s grant of the CUP for the project. This court granted relators’ motion to consolidate.

ISSUES

I. Did the county board err by making a negative declaration on the need for an EIS because it was not reasonable, did not comply with applicable law, or was not supported by substantial evidence?

II. Did the county board abuse its discretion by granting a CUP for the project?

ANALYSIS

I.

Relators first argue that the county board’s negative declaration on the need for an EIS for the project was based on an error of law and not supported by substantial evidence in the record. We disagree.

“A person aggrieved by a final decision on ... the need for an environmental impact statement ... is entitled to judicial review of the decision.... ” Minn.Stat. § 116D.04, subd. 10 (2012). An EAW is “a brief document which is designed to set out the basic facts necessary to determine whether an environmental impact statement is required for a proposed action.” Minn.Stat. § 116D.04, subd. la(c) (2012). The RGU is required to make either a negative or a positive declaration on the need for an EIS based on “information gathered during the EAW process and the comments received on the EAW.” Minn. R. 4410.1700, subp. 3 (2013).

“An EIS shall be ordered for projects that have the potential for significant environmental effects.” Minn. R. 4410.1700, subp. 1 (2013); see also Minn.Stat. § 116D.04, subd. 2a (2012) (“Where there is potential for significant environmental effects resulting from any major governmental action, the action shall be preceded by a detailed [EIS] prepared by the [RGU].”). In determining whether a project has the potential for significant environmental effects, the RGU considers the following factors: (1) “type, extent, and reversibility of environmental effects”; (2) “cumulative potential effects of related or anticipated future projects”; (3) “the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority”; and (4) “the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs.” Minn. R. 4410.1700, subp. 7 (2013).

A relator has the burden of proving that the RGU’s findings are unsupported by the evidence as a whole. Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs (CARD), 713 N.W.2d 817, 833 (Minn.2006). We evaluate “whether the RGU took a hard look at the salient issues, but defer to the RGU’s decision unless the decision reflects an error of law, is arbitrary and capricious, or is unsupported by substantial evidence.” [76]*76Friends of Twin Lakes v. City of Roseville, 764 N.W.2d 378, 381 (Minn.App.2009) (quotation omitted). “Substantial evidence consists of: (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than ‘some evidence’; (4) more than ‘any evidence’; and (5) evidence considered in its entirety.” CARD, 713 N.W.2d at 832 (quotation omitted). An agency’s decision is arbitrary and capricious if the agency

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Related

Minn. Sands, LLC v. Cnty. of Winona
917 N.W.2d 775 (Court of Appeals of Minnesota, 2018)
In re City of Detroit
548 B.R. 748 (E.D. Michigan, 2016)

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Bluebook (online)
849 N.W.2d 71, 2014 WL 2681761, 2014 Minn. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connaughty-v-winona-county-board-of-commissioners-minnctapp-2014.