Appeals Court Addresses Anticipated Nuisance Claim in Frac Sand Case

August 21, 2018

The Wisconsin Court of Appeals recently upheld the dismissal of a complaint brought by Town of Hixton landowners seeking a permanent injunction to stop AllEnergy from creating a frac sand mine in the Town of Hixton. The circuit court had dismissed the claim earlier, and the landowners appealed. The issue that we, and others in the frac sand community, have been tracking with this case is the anticipated nuisance claim theory. The court of appeals confirmed that an anticipated private nuisance claim is a recognized cause of action under Wisconsin law, but found the plaintiffs’ complaint failed to state such a claim. The court found that the complaint did not explain “how or why AllEnergy’s proposed mine is certain to create one or more of the nuisance conditions.”

In this case, AllEnergy argued that Wisconsin law does not recognize anticipated private nuisance claims. The court of appeals held that Wisconsin does recognize an anticipated private nuisance claim as a subset of a general private nuisance claim. The court focused on two early 20th century cases as authority for the existence of this cause of action: Rogers v. John Week Lumber Co. (1903) and especially Wergin v. Voss (1923). The court quoted, with approval, the description of the cause of action from Wergin:

“The instant case presents an application to a court of equity to restrain a threatened or prospective nuisance. While a court of equity may enjoin a threatened or anticipated nuisance, public or private, it should do so only where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is [s]ought to enjoin.” (Emphasis added).

The court explained that “the mere possibility of a future nuisance and future resulting harm will not suffice to justify a court’s intervention.” Situations where the injuries from the action or thing at issue are too remote or speculative cannot support a cause of action in nuisance.

The court went on to discuss generally the factual allegations that are required to support a claim for anticipated private nuisance. Here the court emphasized that to properly allege this type of claim it must be alleged that the defendant’s proposed conduct will “necessarily” or “certainly” create a nuisance, and that the resulting nuisance will cause the claimant harm that is “inevitable and undoubted.” The court found in the AllEnergy case that the plaintiffs’ allegations were too general and vague, and noted that they didn’t provide specific details about the proposed project and its relationship to the lands of the plaintiffs. In the court’s view, the plaintiffs did not plead inevitable and undoubted specific harm to their specific properties, due to the specific AllEnergy mine.

The court of appeals in the AllEnergy case does affirm the existence of the anticipated private nuisance claim under Wisconsin law. However, project developers can take some comfort in the relatively high bar that is necessary to establish such a claim. Why is the bar so high? It is very difficult to establish that a project creates a nuisance before it is ever constructed and operating, because the analysis is necessarily speculative in most cases. In addition, permitting and other land use regulations for frac sand projects are substantial, with many protections for neighboring property owners and the environment.