New Non-Metallic Mining Legislation

October 17, 2013

State Senator Tom Tiffany (R Hazelhurst) has introduced legislation addressing three important regulatory issues facing non-metallic mine operators. These regulatory issues stem from attempts by a number of town governments to regulate non-metallic mine operations in a manner that is beyond town government authority. Some particular town governments have arguably exceeded the authority which the Wisconsin legislature intended to grant them to govern land use matters, have sought to regulate air, water and blasting issues that are already comprehensively regulated by State regulatory agencies. The mine operators believe the town’s regulatory agencies have imposed unreasonable taxes on mine operators for use of public roads.

First, the proposed law will require towns and counties to use their zoning regulations rather than police powers. The Supreme Court, in Zwiefelhofer v. Cooks Valley, extended police powers beyond prior practice. This particular legislation is important to mine operators as it basically tells towns and counties that they must use conventional zoning, and not police powers, to regulate private property.

Second, the legislation puts the regulation of air, water and blasting with the State of Wisconsin. Local governments do not have the expertise, staffing and resources to regulate in these areas. The State DNR already has the staff, expertise, and regulatory authority, and this legislation will make clear that DNR will have sole control in these areas.

Third, the legislation makes it clear that counties cannot tax companies for the use of roads in advance of any use or damage to roads. The roads are built for all the citizens of the State. If a mining company damages a road, towns and counties can collect for those damages, but they cannot do selective taxing without representation.

This is good news for private property owners in the State of Wisconsin. Some may say this is obstruction of the environment; however, others will say this is simply a mechanism to create regulatory clarity and to allow companies to mine an important resource in the State of Wisconsin.

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For more information about "New Non-Metallic Mining Legislation," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743 or Edward J. Lawton at elawton@axley.com or 262.409.2278 or Mitch R. Olson at molson@axley.com or 608.283.6724.