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Judge denies mine appeal

A request for dismissal of an appeal on a Stark County rezoning decision was recently denied by a Fargo judge and the ruling has brought a coal company into appeal proceedings.

On April 6 the Stark County Commission unanimously approved a conditional zoning change of about 7,800 acres from agricultural to industrial at the request of Great Northern Project Development, in order to facilitate a coal mine and construct a coal gasification plant, according to a previous Press article.

In an effort to reverse the decision, Dakota Resource Council, Neighbors United and multiple individuals filed an appeal against the county last year.

"Good zoning establishes land uses based on the public's interest," said Mary Hodell of Neighbors United, a South Heart-based citizen awareness group, according to a press release. "This rezoning was just a matter of changing agricultural land to industrial in order to allow one specific business with dubious prospects to do anything it pleased on the land."

After Stark County judges recused themselves of the case, including at least one Bismarck judge, District Judge Wickham Corwin of Fargo reviewed the matter.

Bismarck attorney Mitchell Armstrong, representing the county, requested the appeal be dismissed on grounds that GNPD was not named a party in the appeal.

Armstrong's brief in opposition to add Great Northern says while the appeal was filed, failure to add Great Northern, "a necessary and indispensable party," causes the appeal's failure thus it should be dismissed.

Derrick Braaten, a Bismarck attorney representing those in opposition, said he requested the judge add Great Northern to the appeal rather than dismiss the case.

Corwin ruled he agrees Great Northern should be part of the appeal process, but does "not agree that dismissal is the appropriate remedy," according to his decision and order.

"There is no evidence here that Great Northern would be harmed by a reversal of the zoning decision in such a significant manner and even if the decision were reversed, nothing would prevent Great Northern from returning to the county with its application after it has received all of its state and federal permits," according to Braaten's memo in support of adding GNPD.

The county cited "an old Colorado court decision as its primary authority," but Corwin said foreign case law is not binding, according to his decision and order.

Braaten said the ruling results in Great Northern being pulled into the suit.

Rich Southwick, GNPD environmental vice president, said to his knowledge, the company hasn't been notified of the ruling.

"We look forward to hearing what Great Northern has to say in formal legal proceedings since its public statements on what it intends to do with the rezoned land have been vague and inconsistent," said Belfield resident Linda Weiss, chair of Badlands Area Resource Council, a DRC affiliate, according to the release.