sand pile

Frac sand is unloaded from a conveyor belt.

Six months after a mining company said it had scrapped plans for a contested frac sand operation in western Wisconsin, a lawsuit is still lingering as the company refuses to relinquish a key permit.

In 2016, three families sued to stop Terracor Resources from opening a 1,018-acre mine, processing and loading facility on nearby land in Jackson County. Their case was based on the assumption that a mine would inevitably infringe on the peaceful enjoyment of their land, a legal principal largely untested in Wisconsin.

Terracor was later bought by OmniTRAX, a Colorado shipping company.

In November, after a circuit court judge refused to throw out the complaint, an attorney for OmniTRAX said the project was dead, and the plaintiffs’ attorney said they would be dropping the lawsuit.

But the parties were unable to agree on terms for a temporary injunction.

Earlier this spring, OmniTRAX filed a new motion to dismiss, arguing that it is not moving forward — for business and financial reasons as well as logistics — and therefore the complaint is moot.

OmniTRAX says it has yet to post the required reclamation bond with the county, has terminated its mining agreement with the town, and has released its options to purchase necessary land.

“As speculative and premature as the request for an anticipatory nuisance declaration may have been three years ago,” the company argues, “it is multiple times more so at this juncture.”

Attorney Tim Jacobson said his clients will not agree to drop the case so long as OmniTRAX holds a permit from the Wisconsin Department of Natural Resources allowing it to fill about 4 acres of wetlands for the rail loading facility.

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Issued last year, the permit gives OmniTRAX until April 2021 to fill the wetlands, although the DNR can also grant an extension “for good cause.”

“This fact seems to contradict OmniTRAX’s expressed intentions to not proceed with frac sand mining,” Jacobson said. “We are concerned that a voluntary dismissal by us would pave the way for OmniTRAX to advertise the site as being free of litigation and ready for a new mining company to sweep in and try to re-establish mining rights.”

OmniTRAX attorney Richard White did not respond to a request for comment.

Judge Scott Horne has scheduled a hearing on the matter for July 29.

Horne last year dismissed a similar nuisance case against AllEnergy Sands, which is seeking to build a 750-acre mine and processing operation several miles away.

That decision was later upheld by an appeals court, which said the plaintiffs did not provide enough evidence to show they would be harmed but ruled that “anticipated private nuisance” is recognized under Wisconsin law.

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