I found my notes!!  On August 29, 2017, Alan and I went to the Goodhue County Courthouse for the GreenMark Solar v. Wacouta Township (Court Case No. 25-CV-17-1462) festivities — a Summary Judgment hearing.

FULL DISCLOSURE: I’m not a fan of any of the principals of GreenMark, Mark Andrew, Dennis Egan, and Julie Jorgensen.  Mark Andrew is a former Hennepin County Commissioner and a fan of burning garbage. Here’s a thread from the Mpls yak-yak list about Andrew when he was running for Mayor.  Dennis Egan, well, we had a few go rounds when he was Mayor of Red Wing AND was executive director of Minnesota Industrial Sand Council, and at the time silica sand mining issue was on agenda for City of Red Wing. Julie Jorgensen? Her Excelsior Energy Mesaba Project coal gasification plant took up 5 years of my full-time labor before it went to part-time and intermittent, and still just won’t fully go away! Minn. Stat. 216B.1694, Subd. 3(b)(1)(ii).

That said, I’m also a big fan of solar, from way, way back when my father designed the solar on the Minnesota Zoo (that was later taken down, it was hot water! Not quite what was most needed, and they didn’t know much about solar back then).

Here’s the GreenMark Complaint — couldn’t find the Wacouta Answer or the cross-motions for Summary Judgment. The Wacouta Township website is years out of date — what’s up with that?  (2014 is most current minutes, plus a notice of the May 2017 meeting about the solar project. ???)

Greenmark Solar v. Wacouta Township_Complaint 25-CV-17-1462

Here are a couple articles:

GreenMark Solar challenges Wacouta Township | Republican Eagle

Minnesota Developer Sues for Solar Garden Permit

The oral argument started with Greenmark.  Some points (not all inclusive):

Focus on Minn. Stat. 394.33, Subd. 1, that the township decision violates Town Powers Act. It’s inconsistent with their zoning. They can enact more restrictive zoning, but they didn’t, township has no solar ordinance.2

Township ordinance is ambiguous.  Frank’s Nursery case — if ambiguous, allow property owner to do what they want with the property.

“Agricultural community” — Planning Commission and Board selected different definitions.  Current use, peat mining and hay.  Pollinator scale 45, and 85 with solar.  Wetlands. Reduce carbon emissions.

Township argument:

Town Power Act does not restrict township actions. Bergen defines inconsistent, it’s not different.
Township Ordinance, Art. 3, Subd. 10, limits industrial uses that do not support agricultural. Solar is an industrial use. Twp. does allow solar in ag, BUT, it’s more restrictive, and it’s not inconsistnet.

The standard is whether down decision was rational, i.e., legally sufficient, supported by record.

Reasonable — inconsistent with agriculture, exported to the grid. CUP – exported, GreenMark takes issue with def of ag use, but see “Hubbard Broadcasting” denial of Conditional Use.  Review is deferential.  Mandamus (GreenMark’s action) review not to challenge discretionary decisions of local government.

Frank’s Nursery re: ambiguous ordinance, doesn’t require ordinance to be construed to support use. Court still needs to determine rationality.

Greenmark Rebuttal

Mandamus – this is about building permit, a ministerial act, not discretionary.

Does township even have jurisdiction/authority.

Purpose of project — Goodhue County, that’s the area.

Altenberg (?) – Town Powers Act – Twp didn’t adopt a more restrictive ordinance.

Bergum (?) – legislative intent of Town Powers Act.

Township Rebuttal

Cases of Mandamus for building permits

Goodhue – zoned agricultural, township couldn’t zone industrial, that would be inconsistent with county zoning.

__________________________

Judge Bayley said he has a lot of homework to do, and will do it and issue Order.

Bubble in the natural gas fracking world?  Is the fracking boom about to go BOOM?  From AlterNet:

Is Natural Gas the Next Bubble? Has Fracking Promised More Than It Can Deliver?

In this weekend’s Red Wing Republican Eagle — they edited my headline, this is the original, because my view of this is that those writing about how he is being abused, it’s a lynching, etc. are ignoring the crucial fact that he had the choice to disclose but he did not.  Let’s see what happens today:

It’s about disclosure!

It’s almost April Fools’ Day, the day Mayor Dennis Egan said he’d resign. Just last week, he was very visible, advocating for frac sand mining at the Rochester Chamber of Commerce’s “Public Affairs Series: Mining in Minnesota,” appearing on MPR’s Daily Circuit — and who knows what else – perfect examples of what the mayor of Red Wing should not be doing.

Meanwhile, there have been a number of painfully contorted letters to the editor, a comment at a City Council meeting supporting Egan and his actions, even a statement reported by a council member, saying “There are ways to recuse ourselves and move past that.”

Mayor Dennis Egan had his chance to disclose. He made his choice, and his choice was to be silent, his choice not to inform the Council or citizens of Red Wing. We learned about his employment as a frac sand lobbyist by reading about it in a Politics in Minnesota report.

Egan’s problem is magnified by number of people who condone his failure to disclose, his deception by omission and his steadfast failure to acknowledge the impropriety of his ethical breaches and the incompetence at conducting an internal examination of the situation. What does this say about our community’s moral base?

On with the special election. Hopefully we can find a mayor with a grounded sense of ethics who takes the oath of office seriously, understands the obligation to disclose, and respects those who trusted with their vote.

Carol A. Overland

Red Wing

Mayor Egan, where is your letter of resignation?  Send him an email and ask him!

dennis.egan@ci.red-wing.mn.us

And the City Council too!

jsebion3@gmail.com, lisa.bayley@ci.red-wing.mn.us, deanhove@charter.net, michael.v.schultz@charter.net, peggy.rehder@ci.red-wing.mn.us, ralph.rauterkus@ci.red-wing.mn.us, marilyn.meinke@ci.red-wing.mn.us

After telling City Council members over the weekend that he’d be resigning, at the City Council meeting last week, Mayor Egan said he’d be turning in his letter of resignation on Tuesday.  That didn’t happen.
Then “the Mayor came in at the end of last week and said he would be getting it to us on Monday (today).”  Yet it’s not been seen.

Out with it, Mayor Egan, resign!

How hard is it to write a letter of resignation?  How hard is it to follow through on something?  How hard is it to keep your word?

Looks like the City Council should proceed with that investigation, and remove you from office, since you’re not following through on your promises of resignation.

A PICTURE IS WORTH A THOUSAND WORDS!!!

YES!!!  Making progress today on two fronts in the frac sand world here in Red Wing and in Goodhue County!!  First, Mayor Egan has announced he WILL resign, but he hasn’t yet.  Second, there’s a draft bill circulating that regulates sand mining and which mandates an EIS, and I’ll post a more detailed review of that soon.

But the problem here is that Dennis Egan shouldn’t wait for a month to resign — Egan should resign NOW!  Way down at the bottom of this is a good editorial from Richard Johnson, a former County Attorney, who was ejected from the Council meeting.  He was outraged at the Council’s lack of a backbone, understandably!  (I missed the meeting, couldn’t be there, was on the train almost to L.A. then, and trains have to be booked 6 months in advance to get a decent price.)  The week of hasty communications before the Council meeting seems to have been worthwhile, seems to have been heard.  It took a while, though, for them to get wound up.  There are a lot of us here in town utterly disgusted by Egan’s lack of judgment and is inability to see that it’s a problem.  Seems that the Council and us voters pushed hard enough to make it impossible for him to continue.  His statements are still statements of denial, more evidence of the depth of his cluelessness (I’m struggling for words here!).

Let’s hope this resignation plan isn’t an April Fools gag. Red Wing City Council, GET IT IN WRITING!

The story in the paper is more extensive than the online version, CLICK HERE FOR PDF OF STORY IN REPUBLICAN EAGLE, and here’s what’s on-line:

Egan will leave mayoral post

Mayor Dennis Egan will resign by April 1.

He made his decision public today, 12 days after the Red Wing City Council voted to have an independent investigator look into Egan’s involvement with the Minnesota Industrial Sand Council.

Egan has maintained that there was no conflict of interest in holding both positions. The public conflict, however, proved another matter.

He reiterated Friday that he’s pleased city attorney Jay Squires issued an opinion that no legal conflict of interest exists at this time.

“Yet, I believe that a mayor must live to a higher standard than just avoiding conflicts of interest,” Egan said. “The position of mayor is one of public service and, if a mayor’s activities serve as a distraction or roadblock for the city, the public is not well-served. The last few weeks have demonstrated that my new position can serve as a distraction to the city and my family.”

Meanwhile, there’s a frac sand mining bill in the works, here’s the draft as I received it:

Sandbill_1

There are some issues with this, particularly regarding local control.  This bill doesn’t do nearly enough to preserve the rights of local governments to do set their own more stringent regulations, it allows it but needs to clearly state that the local more stringent regulations are controlling — if not we’re in the same mess we wound up in on the Goodhue Wind project.  Also, it sets a one year limit on the EIS preparation time, and from the transmission projects I’ve worked on, it may well take more than that.  It does not include Chisago and Washington Counties…  But this is a draft, there’s plenty of time to work on it.  More on that in a bit.

And more good news — soon to be ousted Mayor Egan is in the Rochester Post Bulletin and the STrib too:

Red Wing’s mayor resigns in face of pressure over his frac sand industry role

• Article by: TONY KENNEDY , Star Tribune
• Updated: February 23, 2013 – 4:39 PM

A City Council member confirmed that Dennis Egan will step down, and said the council will drop its investigation plan.

Read the rest of this entry »

Here’s my latest missive to the Red Wing City Council, the final comment before tonight’s City Council meeting.  CLICK HERE TO WATCH IT. We’ll be watching on the train – hope signal is good tonight!

My missive:

All –

Greetings from Chicago.  FYI, I’m beginning a long planned vacation, and it’s not possible to rebook Amtrak without significant penalty, so with regrets, I will not be able to attend tonight’s meeting.

You will have some difficult but necessary decisions to make tonight.

There’s an important point I want to make about “our” Mayor Dennis Egan, and the options before the City Council.  It’s not binary — it’s not either/or.  Several people have said that he needs to choose one position or the other, framing it that there needs to be a choice of whether he will be “our” mayor or to represent frac sand interests.  But it’s too late for that.  He has already betrayed the people of Red Wing and his oath of office.   He’s shown us his moral and ethical views, he’s demonstrated an inability or unwillingness to take the issue seriously, and he has shown the extent of his denial.  That can’t be undone.

The issue before the council is Egan’s fitness as mayor, and not whether he should be given a choice to resign one position or the other.  Whether he resigns as the “voice of frac sand” or whether he is removed from that position as the PR liability that he is, it doesn’t matter at this point if he’s no longer representing frac sand.  With the facts of this issue, and with the Mayor’s behavior and public statements, the bottom line is that he can’t continue as Mayor because has shown us that he cannot be trusted to put the City’s interests first.

Mayor Egan has demonstrated that he’s not fit for office.  He shouldn’t be mayor.

Not only that, Steve Murphy and I agree that this is an impermissible conflict.  If Steve Murphy and I agree on something, it MUST be right!!!

Thank you for our attention to this issue.  I urge you all to act mindful of the Code of Conduct for Red Wing elected officials and your oath of office.

Carol A. Overland
Vacationing in Chicago and on the way to L.A.

p.s. I believe there are records of citizen complaints and comments that are missing from the packet and hope that the packets will be updated with all comments to date just prior to the meeting.

There is a lot more in the papers leading up to tonight’s meeting.  I’m going to cut and paste so that when they disappear into archives, they’ll be accessible.  First is the RW Beagle’s coverage:

Some citizens push for Egan to leave; he’s staying

Some citizens have called for Mayor Dennis Egan to step down since learning he is executive director of the new Minnesota Industrial Sand Council.

By: Anne Jacobson, The Republican Eagle

Some citizens have called for Mayor Dennis Egan to step down since learning he is executive director of the new Minnesota Industrial Sand Council.

Dale Hanson has taken his displeasure a step further: He launched a recall effort Friday morning via email.

“Even if I supported sand mine fracking in Minnesota (which I DO NOT), the mere appearance of conflict of interest and many other potential improprieties is enough to motivate me to attempt to recall Mayor Egan,” Hanson said in his blanket email.

The mayor said he doesn’t intend to resign.

“The flip side is I’ve had some very sincere phone calls: ‘We like your leadership.’ ‘We like what you’ve done,’” Egan said.

That involvement includes serving on the National Mayor’s Association executive committee, the Lake Pepin Legacy Alliance and working to resolve Mississippi National Golf Links’ future.

Hanson wrote that Egan’s new lobbying post to promote and protect mining interests is an embarrassment to the city and an affront to the democratic process.

“I sent out a ton of emails and I am totally confident that I will be getting many responses before Monday night’s City Council meeting,” Hanson said Friday afternoon.

The Red Wing Charter requires that five people sign before a recall committee can form.

Hanson anticipates that forming a steering committee, drafting the recall petition and submitting the paperwork to the city will take a week to 10 days. He then must gather at least 1,900 signatures or 20 percent of registered voters.

Carol Overland, a local attorney, is asking City Council members to oust Egan if he doesn’t resign. She was among the first to cry foul after Politics in Minnesota reported Feb. 1 the Minnesota Industrial Sand Council had formed to give frac sand mining operations, railroad, trucking and petroleum interests “a voice at the Capitol.” She blogged about it, sent emails and contacted City Council members.

The council instituted a moratorium, studied silica sand mining and, in October, passed an ordinance that makes such mining essentially impossible within city limits. Overland said this remains an economic, safety, health, land-use and power issue for all of Goodhue County.

“This has just got my blood boiling, how dare he,” Overland said.

Barring Egan’s resignation or ouster by council vote, Hanson said his plan is to get the ball rolling and let the steering committee take the lead.

“My personal hope is that the added pressure of a real recall will create positive change for this community,” Hanson said.

Now from the Rochester Post Bulletin:

Our View: Red Wing mayor shouldn’t serve two masters

Posted: Friday, February 8, 2013 3:04 pm

Red Wing Mayor Dennis Egan says he doesn’t see a conflict interest between his new job as a lobbyist for the frac-sand industry and his role as an elected official.

The trouble is, a lot of people do.

One Red Wing resident described the situation succinctly. “How can you represent citizens and the industry at the same time?” asked John Tittle, a member of Save the Bluffs, a citizen’s group opposed to frac mining. “It seems like it would be a conflict. It seems kind of obvious.”

Egan said there are no applications before the city for frac-sand facilities and, more important, the city passed an ordinance in October that essentially bans frac-sand mining. If a new frac-sand project is proposed, Egan said he will recuse himself from the discussion.

“In my mind, there’s not a conflict,” Egan said.

Still, the Red Wing mayor’s role as executive director for the Minnesota Industrial Sand Council — a consortium of aggregate, trucking and petroleum companies with interests in frac sand and gravel — raises pertinent questions about whether he can balance his employer’s interests with his community’s.

The Mississippi River corridor is in the heart of the frac-sand boom. More than 100 silica mines and processing facilities have been permitted during the last four years in southeastern Minnesota and western Wisconsin. The region has rich deposits of silica sand, the hard, round grains used in hydraulic fracturing — commonly known as “fracking” — to tap hard-to-reach oil and natural gas deposits.

Regulation of the frac industry so far has been largely left up to county, city and township governments, several of which have declared moratoriums of silica mining and processing while the environmental concerns are studied. At the state level, a Minnesota Senate committee has scheduled a Feb. 19 hearing for bills on sand mining.

Red Wing City Council President Lisa Bayley said part of the agenda for this coming Monday’s council meeting is to discuss what position the city should take on frac-sand issues at the Legislature. Will Egan, who has registered in St. Paul to lobby for the sand council, recuse himself from that discussion?

Bayley and another city council member, Peggy Rehder, said Red Wing will continue to deal with issues regarding truck traffic and barge loading of frac sand from the city-owned dock. Will Egan, whose new employers rely on trucking and shipping to move silica sand, recuse himself from those discussions, too?

Rehder, a former lobbyist, said she wants the city attorney to issue an opinion as to whether the mayor has a legal conflict of interest.

“Would I ever be a lobbyist and hold public office at the same time?” Rehder said. “No.”

We agree with Rehder. Despite Egan’s explanation, he must avoid even the appearance of a conflict of interest. And it’s not as if he’s a lame-duck mayor with little time left in office. He was re-elected in November, so he could be wearing two hats for a long time.

And on to the letters.  The next two are a hoot, because Steve Murphy and I are actually agreeing on something.  As I told the Council, if Steve Murphy and I agree on something it must be right.

Letter: Council should act if Egan won’t

Shame on lobbyist-Mayor Dennis Egan. It’s time for him to resign. If not, it’s time to eject “our” mayor from office. By: Carol A. Overland, The Republican Eagle

To the Editor: Shame on lobbyist-Mayor Dennis Egan. It’s time for him to resign. If not, it’s time to eject “our” mayor from office.

Why? Because he’s lobbying as the executive director of the “Minnesota Industrial Sand Council. Egan isn’t speaking for us or the city of Red Wing. Egan is the voice of frac sand interests.

Frac sand has been before the city of Red Wing, first as a moratorium and then as an ordinance. It remains an economic, safety, health, land-use and power issue for our city and county.

Politics in Minnesota reported formation of the Minnesota Industrial Sand Council to give frac sand mining operations, railroad, trucking and petroleum interests “a voice at the Capitol.” “Our” mayor is executive director of that voice.

Under the City Charter, our mayor has duties and responsibilities as the titular head, recognized as the official head of the city for all ceremonial purposes, to review city operations and make recommendations as he/she believes to be desirable and to review concerns on city activities raised by citizens and make recommendations as he/she believes desirable as to any corrective actions necessary.

Egan is to be representing voter constituents. We didn’t elect frac sand interests to be mayor. The ethics should prevent this representational conflict, but instead he’s taken the position as the frac sand industry’s lobbying arm, and he’s putting the call of the sand industry, and their money, in conflict with his duties as the titular head of the city. That’s wrong.

The city can act when an elected official puts his own interests or those of another in conflict with his duties to the city, or has the cloak of his elected position at the same time as he is paid to gain access or favor for a private interest. An elected official may be removed for cause (Charter, Section 2.05), and the City may also initiate an “Investigation of City Affairs” (Charter, Section 2.09). The Charter also authorizes Recall of the Mayor (Section 6.13-6.18).

Mayor Egan, resign. If not, it’s time for the city of Red Wing to act.

Carol A. Overland

Red Wing

And now Steve Murphy’s editorial:

Letter: City painted with political disdain

The recent developments surrounding the mayor of Red Wing and his employment with the sand mining industry as a paid lobbyist are extremely troubling. It matters not how you feel about the issue of frac sand mining or the use of hydraulic fracturing to harvest gas and oil; the distressing concern at hand is both a matter of law and one of integrity. By: Steve Murphy, The Republican Eagle

To the Editor:

The recent developments surrounding the mayor of Red Wing and his employment with the sand mining industry as a paid lobbyist are extremely troubling. It matters not how you feel about the issue of frac sand mining or the use of hydraulic fracturing to harvest gas and oil; the distressing concern at hand is both a matter of law and one of integrity.

I cannot claim to be an expert in the matter of conflict-of-interest issues. But, during the dry-cask storage debates of the early ‘90s I was accused of having a “conflict of interest” because of my employment with NSP.

The resulting lawsuit was hauled in front of the Minnesota Supreme Court, where the legal opinion rendered by Chief Justice Kathleen Blatz absolved me of any conflict. In the opinion of the court, the conflict standard was not met due to the fact that I was not making any financial gain — not in retirement payouts or medical plans or hourly pay, nothing. Also, the outcome of the overall nuclear debate, whether or not to shutdown nuclear power in Minnesota, did not impact my employment with NSP.

Neither of these instances holds true in Dennis Egan’s case.

I have heard Egan’s reasoning for not stepping down as mayor. His reasoning is simply ridiculous.

Because of the mayor’s actions, damage is being done to the stellar reputation that Red Wing and its residents have earned from people all across our state. It is also painting the elected members of the City Council with the same brush of political disdain.

The profession of lobbyist is already under assault. For those many lobbyists who are above-board and provide factual, accurate and comprehensive information to elected office holders and the public, this is giving them yet another black-eye.

Egan should either immediately resign as mayor of Red Wing or void his contract with the sand mining industry. Not to do so is unethical and a breach of public trust.

Steve Murphy

St. Paul

Steve Murphy formerly represented the Red Wing area in the Minnesota Senate.