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How the sand moratorium was stopped
Conflict of Interest bears scrutiny
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Correction:

Crawford County Supervisor Elling Jones (Dist. 11) owns land in Haney Township, which is a zoned township with a filed comprehensive plan. It was incorrectly stated in the Mar. 8 Independent-Scout that he was one of six supervisors owning land on a sandstone deposit that was “unencumbered by additional township zoning and planning.”

According to County Conservationist David Troester, both Utica and Haney Townships have Comprehensive Plans in place. Zoned towns are: Bridgeport, Haney, Prairie du Chien, Utica.

These would affect land use decisions made by not only by Jones, but for portions of land owned by Larry Kapinus, as well.

State statutes do not prohibit a public official from taking action “to modify” an ordinance in which they have personal interest. In light of recent activities of the Crawford County Board, the question may be whether halting consideration of an ordinance constitutes a modification or a breach of ethics.

It appears possible that at least one member of the Crawford County Board Finance Committee, which headed off a vote on a proposed frac sand mining moratorium, has personal interests which may conflict with the interests of his office.

On Tuesday, Feb. 24 at the Crawford County Board’s regular meeting, it was discovered that the finance committee had chosen to alter an action item on the agenda supplied by the board’s land conservation, planning and zoning committee. The finance committee’s alteration of the land conservation committee’s agenda item turned a vote on a frac sand mining moratorium into a discussion of a frac sand mining moratorium. The result of the finance committee’s decision delayed possible action on adopting a frac sand mining moratorium for two months.

This effectively created a two-month window in which any permit application for frac sand mining would not be affected by the moratorium should the board eventually pass it. Furthermore, such a permit application would not be subject to any ordinances created during the moratorium by the county regarding frac sand and non-metallic mining.

The finance committee’s alteration of the agenda to change the moratorium proposal to a discussion item from an action item was made without a motion, a second or a vote at the finance committee meeting, according to Crawford County Clerk Janet Geisler.

“They were unaware of the moratorium proposal until the meeting and all expressed reservation about the item,” Geisler said.

The action was taken by informal consensus following a discussion among the finance committee members, Geisler explained. So, it was finance committee’s consensus reaction to the land conservation committee’s agenda item that changed it from an action item to a discussion item and it was done without a vote.

According to Duane Rogers (Dist. 5), a finance committee member, committee chairperson Larry Kapinus (Dist. 17) went through the different items submitted for the agenda. With nobody present to explain the moratorium action, Dave Troester, the county conservationist was called in to answer questions on the need and legality of the proposal.

Feeling that not all the questions were answered, the finance committee chose to bring the item forward as a discussion item, according to Rogers.

“We wanted to start a discussion so that everyone on the board would understand what this was about,” Rogers said.

Kapinus could not be reached for comment.

Committee action without voting is not uncommon, when it occurs on an item a specific committee is working on, according to Phil Mueller, County Supervisor for District 8. However, Mueller stressed that these would not be proposals being sent to the board, but rather projects or issues still being developed. He believes it is an inappropriate way to handle an agenda item supplied by another committee.

In this particular case, the possibility of significant financial interest being at odds with public interest exists. As the frac sand mining rush grows, landowners are being offered staggering sums for property. One local landowner has confirmed being offered $12,000 per acre. The average agricultural acre in the county is still selling at about $2,000.

State statute as interpreted by the Wisconsin League of Municipalities, prohibits public officials from using their office to obtain financial gain or anything of substantial value for themselves, their immediate families or organizations with which they are associated. Nor may local officials take official action that substantially affects a matter in which the official, an immediate family member or an organization with which the official is associated has a substantial financial interest, according to the league’s interpretation of state statute. Nor may an official use his or her office in a way that produces or assists in the production of a substantial benefit for the official, immediate family member or organization with which the official is associated.

So does a conflict exist when the matter at hand is frac sand mining and the Chairman of the Crawford County Finance Committee, Larry Kapinus, is both the owner of a sand and gravel mine and the owner of over 200 acres of land located next to a railroad line and plentiful sand deposits?

 “It’s a just reason to recuse himself,” according to Mueller.

County Counsel Mark Peterson explained that county supervisors are bound by the ethical duties of all public servants.

“They would need to recuse themselves from voting if they have a pecuniary interest,” Peterson said. “It could mean recusing (themselves) from the committee seat, as well.”

However, conflict of interest and ethics in office is a delicate line to walk. Outside of the highest offices, it is largely left to the individual to determine.

“Basically, it is up to each county board supervisor to act according to their conscience,” Crawford County Board Chairman Peter Flesch  (Dist. 10) explained. “It’s a matter of public trust.”

While it could be argued that simply holding acreage of any size in Crawford County could make you a prospect for a mining operation, not every acreage is bound to be attractive to frac sand miners. Size, proximity to neighbors, and township zoning are important. So is being situated above the Jordan Sandstone deposits, which provide the rounded sand desirable to the fracking industry.

Of the 17-member Crawford County Board, only six own land on a sandstone deposit unencumbered by additional township zoning and planning, which would make mining extremely difficult, if not impossible.

In addition to Kapinus, board members David Olson (Dist. 7), Joseph Hartley (Dist. 12), Elling Jones (Dist. 11), Gregory Russell (Dist. 13) and Gerald Krachey (Dist. 15) all own substantial acreage in the county with Jordan Sandstone deposits. A member of the finance committee, Krachey owns 153 acres, the bulk of which is located along County N in rural Wauzeka.

Russell owns two properties over 100 acres, one off of Highway 27 south of Eastman, and the other off of Highway 60 west of Wauzeka. The later is located above a sandstone deposit, the former is not.

Hartley owns several properties totaling over 700 acres. Only one exceeds 200 contiguous acres and lies on top of a Jordan sandstone deposit.

Olson owns 200 acres in Freeman Township and has been approached by frac sand miners.

Kapinus owns 747 acres. Part of his holdings, about 238 acres, are clustered along the railroad tracks between County K and Highway 35, in Prairie du Chien Township. That land is located on what are know as “farm lots” that date to the original settlement of the area and are not platted like the rest of the county or most of the state for that matter.

Kapinus is also owner of Frenchtown Sand and Gravel, which is located on farm lot properties in Prairie du Chien Township.  The company is listed on the Merchant Circle website as a sand and gravel quarry. On the Manta website the property is listed as campgrounds. Upon inspection from the road and Google Earth, both descriptions appear to be accurate. Campgrounds and quarry exist on different areas of the property.

Based upon sand deposit maps from the U.S. Geological Survey, both sets of land holdings are located on strong sandstone deposits. However, the maps show roughly two-thirds of the county is located on a sandstone deposit.

Other counties facing an influx of frac sand mining permit seekers have already enacted moratoriums, as a means to buy time as they learn how to best work with the industry to protect citizen interests.

Moratoriums are very common, according to John Rybarczyk, the Zoning Administrator for Crawford County.

“They do seem to create a lot of fear,” Rybarczyk explained. “Moratoria often create a flurry of activity in anticipation of their effect. It puts things on the front burner.”