Wisconsin appeals court rejects frack sand lawsuit

An appeals court rejected efforts by a group of landowners to block a proposed frack sand operation in western Wisconsin. However, the ruling could allow future legal challenges based on damages that haven’t yet occurred.

The court ruled earlier this month that Jackson County landowners didn’t provide enough evidence to show they would be harmed by AllEnergy Hixton’s proposed $130 million project.

Three families in Hixton had appealed the dismissal of their 2016 lawsuit against the Iowa-based company.

The court also ruled the landowners’ legal strategy — “anticipated private nuisance” — is recognized under Wisconsin law. “Anticipated private nuisance” means landowners can’t use their land in a way that may someday harm neighboring property owners. 

The case is the first in the state to apply the legal theory to the frack sand industry, which supplies sand for use in oil and gas wells. 

The landowners’ attorney Tim Jacobson called the ruling “a victory for private property rights” that will allow similar claims to move forward.

“It’s a bump in the road,” Jacobson said.

AllEnergy argued that it’s impossible to prove harm from something that doesn’t yet exist. 

Company president Dean Sukowatey called the case “another travesty” for his company, which lost a state Supreme Court case last year over a denied permit for a separate project in Trempealeau County.

The company’s investors are unwilling to move forward while legal challenges are pending, he said.

Jacobson said his clients haven’t decided whether they’ll appeal to the Supreme Court or file a new complaint with more specific allegations.