I recently found myself standing in a little township called Franklin in Jackson County in a valley surrounded by high hills.
That day allegedly a threat was reported against all 3 of the township’s board members. It was the 2nd threat in a few weeks.
I and a few Franklin residents circled Chris as we listened to the latest news come out of his speaker phone. We learned that due to the threat, Chris could not reserve the Franklin town hall and that in fact nobody could reserve the hall for the remainder of the week.
The immediate responses of the others suggested they didn’t assume the threat was genuine – that they suspected that an excuse had been found to keep concerned citizens out of the public hall. Nobody would go on the record saying as much. Keeping controversial statements off-record is common in any Wisconsin township where large-scale sand mines are on the agenda.
This was the 2nd threat related to town government in the last few weeks. A previous threat was allegedly related to one town supervisor’s September 13th “no” vote against allowing the Coulee Frac sand mine. Now the Jackson County Sheriff is investigating two threats while residents of Franklin wait and wonder whether they will have to endure yet another tense vote on a mine site – a site that at least 240 landowners have said by petition that they do not want. Franklin Township is populated by about 450 people.***
From Chris’ yard I could see the land that a trio of men plan to strip mine under the name “Coulee Frac Sand LLC”. As of 5 months ago they became mine prospecters jumping in on an ongoing rush to scoop millions of tons of valuable sand out of Wisconsin’s hills.
Sand mining in the state isn’t exactly new. Things have been picking up for at least 4 years but with the installation of Scott Walker’s “open for business” administration in 2010, sand strip mining accelerated. The primary speedbumps in the way are reluctant local governments or residents who ask questions and slow things down. If everything isn’t in a rush, citizens have time to learn about depletion of their aquifers and streams or about risks to their lungs from silicosis. If citizens have time they might think about hearing sand trucks run down their twisty country roads all day long. If sand development slowed down, farmers could avoid signing away their land in bad lease contracts.**
Above image is from the blog A Prairie Haven
I started to take a closer look at Frankln when a woman, who asked to remain unnamed for this post, contacted me about what she thought were conflicts of interest. She’s been learning about Jackson County’s chair, a former county corporate council, and the current corporate council who also doubles as an attorney for Franklin township.
A big red flag is the case of the missing moratorium.
In January of 2012, the town board adopted a moratorium against non-metallic mining to their township government. The townships attorney Paul Millis was responsible for reviewing the document – which I’m told is legal boilerplate – but it never came back. Finally the clerk went ahead and posted it on the town’s three bulletin boards around the township. However the moratorium has a clause which requires that the moratorium be printed in the local newspaper of record within 30 days of its adoption. That never happened.
A local told me that “Finally they discovered it and published it in August it but obviously it was invalid by then.”
The local Banner Journal gave this boiled-down version of events: “Following the January meeting, the moratorium was posted but was not published within the 30-days-requirement.”
Reviewing that moratorium was the job of Paul Millis who is both the Town of Franklin’s attorney and the Jackson County Corporate Council.
I was told by a local that he also does work for several other townships in the county. But more importantly, Millis also does work for the law firm Weld, Riley, Prenn & Ricci which is becoming a foremost representative for sand mining companies. This summer Weld et al presented a seminar in Colorado for a frac sand industry trade show called “Moratoria Madness: A Look at Wisconsin’s Regulatory Climate” [slides from that presentation]. The law firm’s website lists services to include providing representation for the frac sand mining industry as well as representation of the landowners, or clients, who’ve entered into the sand business.
Town of Hixton resident Gaylord Oppegard told me Millis’ work for sand corporations is common knowledge: “He’s working for sand mines. It seems to be a well known thing.”
I noticed that Millis will teach a class on sand frac law in December with the Amerian Planning Association and that he neglects to note his responsibilities to local governments in his bio: “His clients consist of individuals, large and small corporations, nonmetallic (“frac sand”) mining entities, and landowners with nonmetallic mining reserves. Mr. Millis’ mining company clients include international and Fortune 100 corporations.”
Yet another source who asked to stay “on background” – let’s call her Z. – said that officially a series of mishaps explains the delay in filing the moratorium against mines. Franklin township residents were told the clerk was ill and also leaving her job. That a board member swore he would talk to Millis and make sure the publishing was done but then he dropped the ball due to work responsibilities.
The company “Coulee Frac Sand LLC” was created 5 months ago and approached the Jackson County Zoning dept. with a petition to rezone its property in Franklin for mining. Very fortunately for Coulee Frac, the Town of Franklin moratorium had not been filed.
On August 8th, 40 people attended a Town of Franklin monthly Board meeting. The rezone petition was on the agenda and those in attendance asked the Board to vote. Z said, “Virtually everyone said they didn’t want the proposed mine. … Finally someone said, everyone who’s against this stand up. 36 of the 40 people stood up. It was obvious that almost everybody there that night didn’t want it”. The board then voted unanimously against the mine.
Z. and two other locals tell me the following which they acknowledge is hearsay –
That earlier that afternoon one of the Coulee Frac people, John Sopher, called the Town of Franklin chairman to see if there would be a vote that night, August 8. He was apparently told there would be no vote. Residents learned later Sopher sat quietly through the entire meeting never introducing himself or presenting any information about his mining proposal.
On August 16 there was a County rezone committee meeting which upheld the town board decision. It was a hearing and about 20 people registered against the mine with roughly 7 or 8 speaking in favor of the mine.
Then on August 20th the Jackson County board took up the matter. In the past zoning matters went to the county, to then be passed back to the town, to then be passed back to the County where the town’s wishes would guide the County’s actions.
But in this case, Jackson County chair Dennis Eberhardt said that there was a discrepancy at the previous meeting because the petitioner was not told he could present at the meeting. Z. said, “He looked at Mr. Millis who sits next to him in these meetings and Mr. Millis said ‘Yeah you’re right. It’ll have to be sent back down to the town’.”
Thus Coulee Frac LLC was handed a fresh start – was told it could present its case on September 11. Coulee Frac then sent a direct mailing to everyone who owned property in the township on September 8th. According to the literature Coulee Frac sent out,properties in Jackson County Wisconsin are expected to contain as many as 100,000 tons of proppant sand per acre.
But anti-mine residents made a move as well. Before 9/11, Franklin resident Tom Clark and 5 other locals raced to gather 240 signatures on a petition against Coulee Frac Sand’s rezone proposal, getting most of those on a Labor Day weekend 9/3 by going house to house when many land owners were available to talk. Only about 325 adults live in the Township.
I’ve been told supporters of frac sand mining in Franklin Township also submitted signatures on a petition but there were only 40.
Franklin is located North of La Crosse. It’s chock a block with hills, twisty roads, trees, contour-planted corn, sunshine, and sky. The biggest decisions that have been set before the town’s government before the year 2012 involved snow removal. Petitions and packed meetings here are a big deal.
[singlepic id=1020 w=320 h=240 float=center]
Above photo: A 450 acre strip mine is beyond the hill. The metal track is carrying sand out on conveyer to be dumped in railcars that rest on a spur that extends to a nearby track. Location: near Taylor, WI.
The next town board meeting on September 11 came and about 75 people attended. The Coulee Frac team brought engineers, a geologist, a finance manager.
From Z.: “They gave their presentation. Then they handed out the cards for questions. People filled them out. Then they selectively chose cards they wanted to answer. People said, “You never answered my question.” Coulee Frac members said, “Well we did, didn’t we?” People felt a little bit put upon. It was very slanted, basically”.
September 12 the board met again. The board reinstated the moratorium at that time. Tom Clark presented the petition with 240 signatures against the mine.
The board of 3 individuals voted tow to one to deny Coulee Frac’s request to rezone 130 acres on Highway N in Franklin for mining. Dave Kral voted no based on, he said, the fact that some older people are living quite close to the site and they didn’t have offers to buy out their land.
Leroy Young said he needed more information and he voted no. Chairman Jeff Blanchard voted yes based on the confidence he got after visiting a mine.
The County Zoning committee then met the next day and they OK’d the Town’s decision, in effect passing it on to the County Board for a final vote. Many in the township assumed the County board would then approve the town’s decision.
The next Monday September 17th, the Jackson County board would meet for what people thought was the last time on the matter of Coulee Frac.
“During the day we heard ‘I heard Leroy was threatened.'” … We get down there and the Chairman said he was going to read a statement. It was, “There’s been a report from the Sheriff’s Department that one of the town board members was threatened prior to his vote on Wednesday night and it may have tainted his vote. And as such the Chair will now entertain a motion to table the petition to rezone. ..The board didn’t seem to know what was going on. The board is 17 or 18 people. They just sat there. They were just stunned. Nobody knew what it meant.
Chairman Eberhardt proceeded to read his statement 2 or 3 more times, each time concluding with his request for a motion to table. Finally one of the Board members said “Yes. I make a motion to table it.” It was then seconded and passed on a voice vote.
Then a County board member asked what tabling meant exactly. Then, Z. says, there was a little conference between Eberhardt and Millis and they said that the zoning request would have to be sent back to the Town.
And this brings us back to where Franklin Township is today: 2 separate threats on board members allegedly reported, Coulee Frac may be given a 3rd fresh start for their mine proposal, and Franklin is that much closer to the end of its moratorium against mining – December 31, 2012.
In Z.’s mind, the proof is not strong enough to say that “conflict of interest” guides Jackson County chair Dennis Eberhardt’s decisions.
To another resident of the county – the person who led me to Franklin’s ordeal who I’ll call Y. – the trio of Dennis Eberhardt, past Jackson County corporate counsel Mark Skolos, and present Jackson County corporate counsel Paul Millis have a strong conflict of interest, have worked together, and are an affront to the members of the community that trust them to impartially serve them.
One of the red flags in her opinion is the fact that Eberhardt owns land further down the same ridge that will be mined if Coulee Frac Sand LLC’s land is mined. The land is technically owned by Triple E Investments. The agent for Triple E Investments is Jackson County Board Chair Dennis Eberhardt.
Aaron D. Eberhardt, Bradley C. Eberhardt and Dennis Eberhardt) transferred 40 acres of land to Triple E Investments in 2009.
Eberhardt has been chair since at least 2010.
Y. found this information in the course of trying to figure out how many sand mines were in the county and how many were in the planning stage.
She began with the proposed Coulee Frac site, reviewing land ownership on plat maps and the pieces to this puzzle began to fall into place. She’s been researching ever since.
Mark C. Skolos was Millis’ law firm partner in Black River Falls for over 20 years and is considered widely to be out of the picture of Jackson County but that’s not what he conveyed in this August of 2011 article, “We’ve certainly enjoyed our relationship with the county,” Skolos said. “We certainly have the … personnel to cover all those things.” The firm of Millis and Skolos merged with Weld, Riley, Prenn & Ricci in 2011. Weld et al is a firm that counts as a major accomplisment its defeat of an Eau Claire County moratorium against sand mining.
Skolos then did double duty – as a front man for sand frac mines and as a corporate counsel for Jackson County from September 2011 to April 2012 in an area rich with frac sand .
Skolos owns land near the Coulee Frac site [he purchased it in 2009] and he could stand to gain financially from the advancement of mining in the county. Skolos became general counsel for Hi-Crush in April of 2012. Hi-Crush is Houston-based and operates a 561 acre mine and facility in Wyeville, WI near Tomah.
I’ve been told Coulee Frac LLC will flip their mine as soon as possible – that they are small time and cash poor.
If it’s the case, Coulee Frac would be one of many. Fly-by-night sand mine operations are common in Wisconsin, according to UW-Wisconsin Geologist Bruce Brown. I happened upon his very pro-sand presentation from November by flipping on my TV the other day. It’s online too. At the 54 minute mark:
“Right now you could go buy a farm out in Trempealeau County. Bubba’s trucking and excavating has got a backhoe and 2 or 3 dump trucks. He can go out there and start digging sand out of some farmer’s backyard, hauling it down to Winona Minnesota, loading it on Union Pacific-selling it to a sand company down there that has a loading facility. …that’s stuff is going out there for $300 – $400 a ton at the well head which is pretty amazing. .. Well as soon as the supply starts to come up, there’s going to be some major changes in the economics. We’ve got some huge capacity being built into some of the big plants like EOG up in Chippewa Falls, Wind Based sands in Trempealeau County. Badger has put a lot into expanding their capacity and I think we’re going to see a settling out of the industry in the next couple of years.”
I mentioned the Franklin story to Mike O’Connor of Buffalo County. O’Connor is a local land owner and the administrator of the blog FracSandFrisbee.com
We spoke in Gilmanton following a zoning committee meeting that just extended Buffalo County’s moratorium (the county board will now vote on the moratorium Oct. 16). O’Connor says he’s heard that land owners are offered lease deals that could yield them up to $1 million dollars per year over a period of 3-5 years. But he says the contracts are full of holes [you can review a copy of a contract on his blog]. He said that once the contract is signed, the farmers usually get some money immediately – more or less determined by how hard the landowner negotiates. However the contract has iffy clauses. For example, the deals are usually contingent on government approvals that are “satisfactory to the company” — no permits, no deal.
At the Buffalo County meeting, mining supporters wore matching lime-colored shirts. None of them would give me much eye contact but at least they didn’t say anything negative to me. Those who have signed a contract with a mine firm are usually contractually obligated to remain silent about the terms. I’ve heard they are also contractually obligated to show up at meetings.
The Coulee Frac site is across the road from Chris Nestor’s property. “They really do think they’re just going to come in here, tell us a couple good stories, and we’re just going to fall at their feet. And some of them have. Some of them, ‘Oh these guys are going to treat us right’. No. They’re businessmen. They’re going to look out for themselves only.”
Chris has been in touch with the DNR to get advice on getting a baseline for his water level to know if the aquifer is getting depleted on his land. I asked him what remedies are available in case he does have to drill deeper to get good water. His response: “If there’s any chance they can wreck the aquifer, then it should not be considered.”
He spoke with a DNR official who said that a mining company will come into the area to test his well to protect itself from lawsuits, adding, “It’s definitely a self-interest thing [meaning the mine is self-interested]. That’s a big concern for me. I have very good water.”
Chris trains his workhorses on the gravel road that runs between his place and the proposed mine site. He moved from the Chicago area and has lived in Franklin for 34 years. He knew he wanted to live in a rural area after working as a wilderness guide in high school. He knew nothing about horses when he came. “I didn’t move here with the expectation that I’d drive 5 minutes to get to a job. I knew I’d have to be creative to make a living…if that mine goes through that will only be a 3 year job anyway. You’re not going to build a house and buy a car with the money from that job.”
He said there had been no job fair in his area. Only a presentation at a town meeting. But people repeat the word “jobs”. “That’s the only thing that registers with people. ‘Jobs’. If these investors hire a mine company to come in, they could have their own trucking contractors. There could be no jobs…I like my peace and quiet. I like it here the way it is.”
As I asked Chris exactly where he falls on that spectrum of support or opposition to mining, I realized that the people around me were listening and asking themselves the same questions. I asked Chris how well the anti-mine people in Franklin Township and in Jackson County knew each other before controversy came. “We were neighbors. We would just say ‘hi’. Now we’re talking more…It is sad that I have some neighbors that were close that are for it [mining] and they are taking this very personally.”
Chris talked about the possibility that the Jackson County board might go against the township’s vote and approve Coulee Frac for mining.
“If that happens we can still have a concerned citizens’ group appeal the decision”, Chris said.
A meeting is scheduled 7PM in Franklin for Wednesday 10/10/12. Here’s the agenda.
I will communicate with the Government Accountability Board about Wisconsin Statute 946.13 which establishes penalties for government conflict of interest. I could also talk to the Office of Lawyer Regulation and to Wisconsin’s Dept of Justice about Franklin Township and Jackson County.
Something tells me the Lawyer Regulation office won’t be helpful, though. It looks like Mr. Millis serves on the same committee that I would report him to: District 5 Committee of the Wisconsin Supreme Court Office of Lawyer Regulation.
Above video is from The Price of Sand
Videos from a September 12 Town of Franklin meeting.
Also available: 14 videos documenting a September 11, 2012 meeting at FracSandMines101
If you were
(1) Any public officer or public employee who does any of the following is guilty of a Class I felony:
For a Class I Felony, the penalty is a fine of up to $10,000, or imprisonment of up to 3-1/2 years, or both; however, for a repeat offender, the term of imprisonment may increase up to 2 years with prior misdemeanor convictions, and up to 6 years with a prior felony conviction.
(a) In the officer’s or employee’s private capacity, negotiates or bids for or enters into a contract in which the officer or employee has a private pecuniary interest, direct or indirect, if at the same time the officer or employee is authorized or required by law to participate in the officer’s or employee’s capacity as such officer or employee in the making of that contract or to perform in regard to that contract some official function requiring the exercise of discretion on the officer’s or employee’s part; or
(b) In the officer’s or employee’s capacity as such officer or employee, participates in the making of a contract in which the officer or employee has a private pecuniary interest, direct or indirect, or performs in regard to that contract some function requiring the exercise of discretion on the officer’s or employee’s part.
“While silica exposure in the workplace is tightly regulated, there are no specific limits for silica dust in the open air.”
***According to the 2000 U.S. census 325 people live in Franklin Township. It should be noted that some of those who signed the petition against the Coulee Frac mine are landowners who do not permanently reside inside the Franklin Township.
A comment on Wisconsin’s Dept. of Natural Resources:
Scott Walker appointed Kathy Stepp to be the DNR’s head in 2010 because, as he told W.S.J., ““I wanted someone with a chamber-of-commerce mentality”. Former DNR leader George Meyer said his biggest concern about Walker’s DNR appointees was none of them have a professional background in natural resource management.
In what is presumed to many to reflect the DNR’s “open for business” attitude no matter what the consequences, the DNR is at a 12 year low in ticketing for offenders of environmental regulations, such as polluters.
Wisconsin under Scott Walker’s management is, in my opinion, not just open for business, it is open for whatever environmental devastation comes its way if it helps turn a buck.
Jackson County Wisconsin Property Database