Howard annual meeting motion for sand mine fee deemed advisory only

By LeAnn R. Ralph

TOWN OF HOWARD  —  A motion passed by the electorate at the Town of Howard’s annual meeting requiring sand mine companies to pay 50 cents per ton of processed sand is advisory only, according to the Wisconsin Towns Association.

Dennis Dvoracek, Supervisor II on the Howard Town Board, reported on the opinion from the Wisconsin Towns’ Association at the town board’s May 3 regular monthly meeting.

The motion approved by the electorate at the annual meeting April 19 reads as follows: “A royalty of 50 (cents) per processed ton from any sand processing plant operating in the Town of Howard shall be paid on a monthly basis by the 15th of the following month to the town treasurer in a format prescribed by the treasurer. The royalty shall be adjusted for inflation on an annual basis by the town board.”

Asking sand mine companies to pay 50 cents per ton for processed sand is not a bad idea, but town boards do not have the authority to impose such a tax, Dvoracek said.

Red Flint Group is proposing to operate a sand mine and a processing plant, known as the Albertville Valley sand mine, that would cover about 1,300 acres in the Town of Howard a few miles southeast of Colfax.

Chippewa County land conservation approved a nonmetallic mine reclamation permit for Northern Sands on November 18, 2015.

The Town of Howard is an unzoned township but does have a mine licensing ordinance.

The Albertville Valley sand mine also would include a loading and shipping facility.

Representatives for Red Flint Group stated at a meeting that they would work within the township’s sand mining ordinance and that they would not want a developer’s agreement, Dvoracek said.

Negotiating a 50 cents per ton fee could be done as part of the developer’s agreement if the company were willing to pay that amount, he said.

“If they do not want to do it, we cannot make them pay,” Dvoracek said.

“It’s something we should try for, though, and we probably will,” he said.

If the company complies with the Town of Howard’s mining ordinance, the town board “cannot go beyond that,” Dvoracek said, noting that property value assurances also could not be done under the ordinance.

Oil is currently selling for about $43 per barrel, and the price has to be $65 or $70 per barrel before hydraulic fracturing becomes profitable, he said.

Authorized

Frank Goodman, a Town of Howard resident, said he had worked as a contract administrator for the state and that the Wisconsin Towns’ Association opinion did not reference any state statutes “and it is a poor opinion.”

Several decades ago, annual town meetings were the most powerful of all meetings, he said.

State statutes used “authorize” and “direct” interchangeably, and either authorize or direct were viewed as a valid way to require the town board to do whatever had been approved by the electorate at the annual meeting, Goodman said.

That changed with a 1995 Town of Long Lake court decision in which the judge said authorize and direct were not interchangeable, he said.

A town board might be authorized to do something at an annual meeting, but the town board may or may not do it, Goodman said.

Residents of the Town of Howard have directed the town board to charge a 50 cent per ton royalty for processed sand, he said.

“You can say you are doing the will of the people,” Goodman said, noting that 80 percent of the people at the annual meeting voted in favor of the motion.

16 people

Dvoracek noted that 16 people attended the Town of Howard’s annual meeting and was of the opinion that 16 people was not a very representative sample of the town’s electorate.

The number of people at the annual meeting definitely made a difference for the zoning question, he said.

Several years back, residents in the Town of Howard approved zoning at an annual meeting, and then at another special meeting of the town’s electorate, zoning was turned down.

The Howard Town Hall was packed to standing room only for the special town meeting on zoning.

“We cannot be forced to put (the 50 cents per ton fee) in the developer’s agreement. We will try. But they may not agree,” Dvoracek said.

“The people have spoken. You must put it in there,” Goodman said.

The Town of Howard will not ever have another processing plant, and Red Flint Group will not walk away from the proposed Albertville Valley sand mine, he said.

The company is waiting for the state to take over local control of the sand mines, Goodman said.

Governor Scott Walker has a $1 million campaign debt to pay off from running for president, and the sand mine companies will get the regulations moved to the state level as one company did for the iron ore mine up north, he said.

The governor will get money for the sand mine regulations being moved to the state level that he can put toward the campaign debt, Goodman said.

The state has tried several times to take away local control, but it is has not gotten out of committee yet, Dvoracek said.

“They did it for the iron ore mine in Bayfield. This is not much of a stretch,” Goodman said.

“If we don’t have local control, we have nothing to talk about,” Dvoracek said.

Representatives for Red Flint have said an application for a Town of Howard mining license would likely be submitted in the fall of 2016, and that if the mine license were granted, mining for frac sand probably would not begin until the fall of 2017.