February 27, 2012

          The Special Town Board meeting of the Town of Cooks Valley was called to order on February 27, 2012 at the Cooks Valley town hall located at 15784 40th Street at 1:02 pm by Chairman Darrel Fehr.  Supervisors present were David Clements and John Sykora.  Other town official present was Victoria Trinko-clerk.  See attached list for delegation present.     
Discussion with Attorney Glenn Stoddard regarding the implications of the decision in Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, and the application and enforcement of Ch. 19 Non-Metallic Mining Ordinance, to ongoing and proposed mining operations and activities within the Town of Cooks Valley.  This discussion may also address issues relating to potential negotiations with mining companies over various proposed agreements with the Town of Cooks Valley.  Note:   Please take notice that before or during this discussion with Attorney Stoddard, the Town Board may go into closed session, pursuant to Wis. Stat. §§ 19.83 & 19.85(1)(e)& (g), to confer with Attorney Stoddard on legal matters concerning competitive or bargaining reasons that require a closed session, and to confer about strategy regarding current or likely litigation involving the Town of Cooks Valley.
Darrel Fehr informed the public that we are waiting for Attorney Glenn Stoddard for advisement on how the Town of Cooks Valley should proceed with our Non-Metallic Mining Ordinance.  Attorney Glenn Stoddard arrived at 1:09 pm and opened the discussion with the factors of three sand mines and one gravel pit in operation in the Town of Cooks Valley at this time.  Enforcing Chapter 19 Non-Metallic Mining ordinance is now the matter at hand.  The question is how does the town deal with the sand mines that went into activity after the Non-Metallic Mining Ordinance was adopted?  There are three different issues to be considered:  Any mines operating prior to the adoption of the ordinance that have not expanded would be exempt from the ordinance.  Any mines wishing to start operations after the ruling would come under the ordinance.  The compelling issue is the mines that started operation while the ordinance was in contention in the courts.  Attorney Glenn Stoddard read a comment submitted to him from former supervisor Gary Yakesh who felt all mining operations started after the adoption of the Non-Metallic Mining Ordinance needed to comply with the ordinance.  Attorney Glenn Stoddard also read a memo submitted to him from John Behling, attorney representing EOG, who maintained EOG should be exempt from the ordinance as employees of the company would suffer from enforcement of the ordinance and forwarded a development agreement to Attorney Glenn Stoddard and the town board.  Attorney Behling cited a case supporting his statement.  Attorney Stoddard looked at the case John Behling cited and the cases the ruling cited.  The case John Behling cited was a criminal case and the case from the ruling was a civil case.  There is no clear cut rule of law that states when a ruling can be applied retroactively.  Glenn Stoddard felt there should be equitable fairness to the mining companies and the property owners in the town. 
Glenn Stoddard proposed three options:
1st option:  Accept EOG’s proposal or other mining companies’ proposal, if offered, give them a pass, and exempt them from the ordinance. 
2nd option:  The board can refuse EOG’s proposal or other mining companies’ proposal, if offered, saying EOG or other mining companies’ knew when the ordinance was adopted and everyone knew of its existence and anyone could have come before the board and made an application.  The ordinance never said they could not mine.  The ordinance would treat everyone the same.
3rd option:  Glenn Stoddard conceded there is some merit to John Behling’s argument that people may suffer from stopping operation of the mine.  Therefore, a notice could be sent to the sand companies in operation that the ordinance does apply to them and the fact that they are already operating would be taken into account.  They would have to go through the permitting process and the board would agree to work with them on the conditions.  In the interest of fairness, the board would inform the companies the ordinance does apply to them, but they would be allowed to operate while the permitting process is going forward but a time line would be set for the process to be completed.  The steps outlined in the ordinance would be implemented, companies could reference their reclamation plan or their operational plan to minimize their paperwork, and a negotiated agreement may be a permit. 
If the board would not implement the ordinance, citizens may sue the board for not protecting the health, safety and welfare of the residents.  On the other hand, if the board shut down the mining companies, the mining companies may sue the board. 
There was a suggestion for all the sand companies meet with the plan commission and the town board to work together toward an agreement, give a time line for an application and then have another meeting to reach an agreement.
Supervisor David Clements asked, “Will the application apply to what land is open now or the total of land in the reclamation plan?  Attorney Stoddard felt it would apply to what land is designated in the reclamation plan. 
Chairman Darrel Fehr asked, 'Would new mines go through the ordinance?  Glenn Stoddard felt they would have to go through the ordinance as they were not in operation and the employees would not be in jeopardy. 
There was a consensus that a meeting should be held, a time line established for completion of the process, conduct a further meeting and issue a permit with each company, making sure that each company was dealt with fairly as they are currently in operation. 
Chairman Darrel Fehr questioned, “How do we deal with issues that are occurring now?” For example-hauling waste material back to a mine that was not removed from that particular mine and having knowledge of what has been used in the processing of the product.  Can we use our police powers to stop them from hauling in additional fill?  Attorney Glenn Stoddard advised the chairman to inform the sand companies that they are not to do anything other than what they are doing now. 
There was a discussion to have Glenn Stoddard compose a letter to be sent to each sand company and David LaGesse with a gravel pit informing them that they are to comply with the Non-Metallic Mining Ordinance, they should submit their applications, there would be a week to review the application, a meeting would be scheduled with the plan commission and town board, and then a public hearing and town board meeting.  Glenn Stoddard reminded the board of the necessity of having a reporting method and monitoring system to determine whether the companies are following the rules and demonstrate accountability. 
Glenn Stoddard will compose a letter informing the companies of the date for applications, submit it to the clerk and board, and after approval by the board, he will send the letter to the sand companies.  Then a special joint meeting of the board, plan commission, and applicants will be scheduled. 
There will be a special meeting of the town board of Cooks Valley on Tuesday March 6, 2012 at 9:00 am to approve the letter to the companies and authorize Glenn Stoddard to send the letters. 
Adjourn:  David Clements made a motion to adjourn at 3:05 pm.  John Sykora seconded the motion.  The motion carried 3-0.

Typed:  February 27, 2012                                  Respectfully submitted
Approved:   March 12, 2012                                Victoria Trinko -Town Clerk