Disregard for zoning and conflicts of interest are among the claims leveled against the Town of Bridgeport in a civil suit filed on Wednesday, Aug. 21 in Crawford County Circuit Court.
The suit was brought by Crawford Stewardship Project and four Bridgeport residents (Arnie Steele, Loren Fishler, Mark Fishler, and Dan Linder). The suit is in response to the town’s decision to approve conditional use permits and mine reclamation permits to allow a frac sand mine to operate within the township. All four Bridgeport citizens, who are a part of brining the suit, live near the land to be mined.
If the plaintiffs win the suit and are granted their request, the permits granted to Pattison Sand Company and landowners Rodney Marfilius, Earl Pulda, and Lee Pulda would be voided. New hearings, with new decision makers, would be held.
In addition to the alleged previous undisclosed conflicts of interest and erroneous application of the town’s zoning ordinance, the suit claims public hearings were inadequate and there was a lack of fairness in the decision-making process.
The suit further claims the mine has already had negative impacts on the value of neighboring properties and will likely produce additional negative impacts in the form of air, noise, and light pollution, increased traffic, negative environmental and health impacts on nearby residents, damage to the tourism and boating industries. Such impacts are to be considered in any considering aconditional use permit application, according to the suit.
As of Monday, Sept. 2, Town of Bridgeport Chairman John Karnopp had yet to see the lawsuit and said all he knew was what he had read in the newspapers. The lawsuit, when it is received, would be sent to the town’s insurance company, which will assign an attorney to the case.
“We carry insurance for this sort of thing,” Karnopp said. “We don’t have to waste taxpayer dollars on a frivolous thing, this way. That’s a good thing, not wasting taxpayer dollars.”
The village’s attorney, Todd Infield, had described the suit as “frivolous”, according to Karnopp.
Infield could not be reached for comment this week.
Bridgeport Township Clerk Linda Smrcina, a member of the Plan Commission, was out of town at the time when the lawsuit being filed. She received the lawsuit papers on Monday after returning home.
“I’m not exactly sure what we do next,” Smrcina said on Monday. “I haven’t really had time to look into it.”
Smrcina, along with her son Troy Smrcina who was also a member of the Bridgeport Plan Commission, were named in the lawsuit as failing to disclose a conflict of interest.
The lawsuit cited Wisconsin Statute 19.59(c), which states that municipal government officials may not take action in a matter in which they or an immediate family member has a financial interest.
Both Smrcinas voted to approve the conditional use permit to allow non-metallic mining within the township, while having a relative working for Pattison Sand Company.
Smrcina confirmed that her son-in-law does work for Pattison Sand Company and has for a few years.
“I really didn’t think about it until someone else brought it up,” Smrcina said. “It was immaterial to me. He didn’t live with us. I don’t support him. What does it matter to me?”
One landowner involved in the mining project, Rodney Marfilius, was a Supervisor on the Bridgeport Township Board, when he entered into negotiations with Pattison Sand Company to lease his land for frac sand mining. His involvement was not stated publicly until late October of 2012 when notice for a public hearing of the mine proposal was posted.
Marfilius did abstain from discussion and voting on the mining reclamation applications when they came before the board. He also abstained from discussion when he sat with the Bridgeport Plan Commission in his position as the Town of Bridgeport Zoning Administrator, a non-voting position.
“I abstained from voting on that, as well,” Marfilius said of the voting on the village’s mining ordinance, which was adopted on Oct. 15, 2012.
Another landowner initially involved in the project, Alan Flansburgh, was appointed to the Bridgeport Plan Commission last April. Flansburgh was involved in negotiations with Pattison Sand prior to their initial permit application, but opted out of the Bridgeport Township conditional use permit application. His name and property were maintained in the recently denied permit application with the Lower Wisconsin Riverway Board.
“I may decide to mine in the future,” Flansburgh said. “It was on the Riverway application just in case.”
“I’ll just abstain from voting, the same as Rod did,” Flansburgh said, should the issue arise before the Bridgeport Plan Commission. “That’s what Rod (Marfilius) did. It worked out, that way, to avoid conflict (of interest).”
The four landowners who brought the suit all live near the mine site that is expected to run 24 hours per day, seven days per week.
Plaintiff Arnie Steele lives a quarter-mile from the site and less than 100 yards from one of the three rumble strips on the road between his residence and the junction of Highways 60 and 18, all of which he believes will see heavy use by Pattison Sand trucks.
Fellow plaintiff Mark Fishler lives adjacent to the mine site where he raises approximately 100 head of cattle, whom he feels will be adversely affected by noise from blasting and mining.
Loren Fishler, another of the plaintiffs living adjacent to the mine, and his wife suffer from Chronic Obstructive Pulmonary Disease, a progressive lung disease they feel will be exacerbated by exposure to fine particulate silica dust generated by the mine.
Plaintiff Dan Linder lives a mile-and-a-half from the mine and is concerned with fugitive dust, noise from blasting, and ground vibration from the mine.
Testimony was given at the August 22 meeting of the Lower Wisconsin State Riverway Board to consider permit applications for operation of the sand mine within the Riverway borders by two Bagley residents on the impact of a Clayton, Iowa mine, owned and operated by Pattison Sand Company. Pictures and oral testimony made it clear that the Bagley residents believed dust from the operation was pervasive and that blasting was clearly audible and visible.
Bagley is approximately a mile-and-a-half across the Mississippi River from the Clayton, Iowa site.
“Our attorneys are reviewing it,” Beth Regan, spokeswoman for Pattison Sand Company, said of the lawsuit. “However, it’s really in the hands of Bridgeport.
“Our goal right now is to get the driveway in and construction completed by October before weather makes concrete work impossible,” Regan said. “We can’t forecast demand six-months out, so mining could happen right away (upon completion of the work) or in a couple of months.”
How the lawsuit progresses will depend upon how quickly Bridgeport Township responds and how quickly Crawford County Circuit Court schedules the first hearing or briefing, according to Glenn Reynolds, the attorney for plaintiffs.
“Whether the court has questions will determine if they schedule a briefing or a hearing first,” Reynolds said.
“The court waits for people to ask for a particular injunction,” Reynolds said, noting there was nothing stopping the mine’s progress in place. “There is a possibility of seeking an injunction, but it’s an uphill battle.”
“I would expect, given the controversy surrounding the issue, the court will move to schedule this quickly,” Reynolds added. “But, they have to hear from the town, as well. It takes two to tango.”
Frac sand mining in Wisconsin has grown rapidly in the last few years, more than doubling from 2011 to 2012. Wisconsin now has more than 110 permitted facilities.
Silica sand for non-fracking industrial use currently costs between $20-26 per ton. Reported average prices for untreated frac sand in the U.S. Geological Survey Minerals Yearbook were between $45 and $50 per ton in 2010. Treated sand can run more than $200 per ton.
The USGS lists Wisconsin as third nationally in production frac sand.
While construction on the Bridgeport mine has not officially begun, Marfilius anticipated work would begin soon. Once actual mining begins, his land will be the first mined. He described the planned work as occurring in a rolling progression that will move across the three farms bit-by-bit, reclaiming the mined land as it goes.