In Erickson v. Minnesota Dept. of Natural Resources, No. A14–1732 (Minn. Ct. App. July 20, 2015), the Minnesota Court of Appeals interpreted a 2013 statute requiring that within the boundaries of the Paleozoic plateau ecological section, no silica sand mining may occur within one mile of a designated trout stream unless the Minnesota Department of Natural Resources (DNR) has first issued a silica sand mining trout stream setback permit. Minn. Stat. § 103G.217. The permit requirement applies only to “new silica sand mining projects and projects for which environmental review documents have been noticed for public comments after April 30, 2013.” 2013 Minn. Laws ch. 114, art. 4, § 66, at 1732.

Trout stream in southeastern Minnesota (Source: www.dnr.state.mn.us)

Trout stream in southeastern Minnesota (Source: http://www.dnr.state.mn.us)

At issue was a Houston County silica sand mine that since 1992 had been operating under a conditional use permit (CUP), which had been renewed every 5 years. The CUP authorized silica sand mining and placed no limit on the amount of sand that could be mined. In 2009, relators entered an agreement with the Minnesota Sands company that would have significantly expanded the mining operations. In 2012, the County enacted a moratorium on new silica sand mining projects and ordered preparation of an environmental assessment worksheet (EAW) for the relators’ proposed mine expansion. The County also delayed processing relators’ timely CUP renewal application pending completion of the EAW. Subsequently, relators terminated their agreement with Minnesota Sands. As a result, the County no longer required an EAW and processed the CUP renewal. Although the renewal occurred beyond the 5-year permit period, the County’s standard practice was to allow mines to continue operating under a prior CUP during such delays.  However, the Minnesota Department of Natural Resources (DNR) determined that the delayed renewal of the CUP meant that the mine was a “new silica sand mining project” and was now subject to the new setback requirement in section 103G.217.

The court reviewed DNR’s determination de novo and concluded that relators’ sand mine was not a “new project” within the ambit of section 103G.217. In reversing the DNR, the court held that under common meanings of the key statutory terms, relators’ “project”—extracting sand for sale—was not new but had been in existence for over two decades. In addition, the Court deferred to the County’s interpretation of its handling of the CUP as an “extension” or “renewal” of an existing CUP, not a new permit.

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