Cooks Valley mining ordinance challenged

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By MARK GUNDERMAN
The Chippewa Herald
Tuesday, October 14, 2008 12:06 PM CDT

The town of Cooks Valley could end up in court defending a mining ordinance passed earlier this year. Meanwhile, how the ordinance applies — if at all — to existing mining operations in the town is up in the air.

At its regular meeting Monday, the town board passed a three-month moratorium on mines in order to give the board time to fine-tune its ordinance, according to Town Clerk Victoria Trinko.

The board also tabled decisions on “grandfathering in” existing mines until the issues are sorted out. The board has not yet acted on a claim filed seeking to stop enforcement of the ordinance, Trinko said.

Cooks Valley — located west of Bloomer on the western edge of Chippewa County — has been served with a notice of claim from attorney William Thiel, a municipal law specialist, who represents seven landowners in the township. The claim states that a mining ordinance passed unanimously July 14 is unenforceable.

In order for a party to sue a municipality under Wisconsin law, the party must first file a claim with the municipality. If the claim is denied, the party can then seek relief through the courts.

“We feel it isn’t enforceable and if they reject (the claim) we will seek a declaratory judgment in court,” said Thiel.

Mining ordinances being the subject of controversy is not new in Chippewa County. Earlier this year, the town of Howard passed one when a company called Canadian Sand and Proppant expressed interest in starting a sand mine in the unzoned township.

Howard residents then used the new ordinance to fight the establishment of the mine, which has still not been approved.

Cooks Valley reportedly has deposits of the same kind of valuable sand the company was interested in mining in the town of Howard. However, there are no indications at this point that Canadian Sand and Proppant is trying to establish a mine in Cooks Valley.

Town Chairman Ron Fanetti on Monday said the experience in Howard was a factor in the Cooks Valley board moving toward passing a mining ordinance.

But questions arose about the ordinance’s effects on existing mining sites. Cooks Valley does not have any large industrial mine sites, but some landowners have been digging sand and gravel out of their land for their own and others’ uses for quite some time.

One of them is Loren Zwiefelhofer, who is among Thiel’s clients.

Zwiefelhofer said Monday that he had such a small area that had been dug for the past 30 years that it did not require the usual county permit. However, with an interest in expanding it — partly to dig clay — he recently obtained a county permit.

In an August meeting, the town board read into the record that there were existing pits on property owned by Mark Clements, Sam LaGesse and David LaGesse, and two each from Loren Zwiefelhofer and Brad Rihn, according to minutes of the meeting.

On the agenda for Monday night’s board meeting were also existing mines on land owned by Jeff Buchner and Glenn Sarauer.

Issues related to mining led to a special town board meeting Sept. 17.

Thiel said the landowners’ claim was filed last week.

Basically, the legal basis for the claim is that the mining ordinance should be considered a zoning ordinance.

“It looks like a zoning ordinance to me,” said Thiel.

The town of Cooks Valley is not zoned. To become zoned, the town would have to adopt county zoning and submit any zoning ordinances it adopts to the county board for approval. That was not done in the case of the mining ordinance, Thiel said.

The board met in closed session to confer with its attorney Monday night. Trinko said the town’s attorney will communicate with Thiel over the issue, but the board has taken no action on the claim at this time.