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A judge has dismissed a lawsuit against a stalled Jackson County frac sand operation while leaving open the possibility of future litigation if developers move forward before a key permit expires.

Three neighboring families sued in 2016 to stop a proposed 1,018-acre mine, processing and loading facility north of Black River Falls on the grounds that it would create an inevitable nuisance.

Attorneys for OmniTRAX said last year the Colorado-based shipping company was abandoning the project because of poor market conditions created in part by a glut of cheap sand from mines near Texas oil wells. But the neighbors refused to drop the case so long as OmniTRAX held a permit from the Wisconsin Department of Natural Resources allowing it to fill about 4 acres of wetlands for the rail loading yard.

La Crosse County Judge Scott Horne agreed Monday to dismiss the case, noting that OmniTRAX has yet to post financial assurance, has terminated its mining agreement with the town, and has given up its options to purchase necessary land.

But Horne agreed to reopen the case should OmniTRAX resume work before the wetland permit expires in April 2021.

Tim Jacobson, who represented the plaintiffs, said Monday’s ruling ensures his clients will have a chance to argue their case if OmniTRAX or a successor decides to pursue the mine again.

Attorneys for OmniTRAX did not respond to a request for comment Tuesday.

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The case was one of two brought against proposed Jackson County frac sand operations using the legal concept of “anticipated nuisance,” which holds that the defendant’s actions would inevitably infringe on others’ rights and was largely untested in Wisconsin.

Horne last year dismissed a similar nuisance case against AllEnergy Sands, which is seeking to build a 750-acre mine and processing operation several miles away.

That decision was upheld in August by an appeals court, which said the plaintiffs did not provide enough evidence to show they would be harmed but ruled that anticipated nuisance is recognized under Wisconsin law.

Horne also on Monday awarded $1.2 million to a landowner who sued AllEnergy for breach of contract after that project failed to materialize.

Trinity Farms LLC last year claimed the Des Moines company had failed to make $577,000 in annual payments outlined in a 2013 lease for 216 acres in the town of Hixton and sought $25.7 million.

Horne dismissed AllEnergy as a defendant but granted a judgment against its subsidiary, OPCO LLC.

When the case was filed in 2018, AllEnergy CEO Dean Sukowatey said the project had been stalled by ongoing lawsuits. Sukowatey said Tuesday that OPCO is not part of AllEnergy “and has no bearing on our business.”

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