Editor’s note: This story has been updated to reflect the landowners’ lawsuit, filed on Wednesday.
A group of landowners and residents who have opposed nearby aggregate mines in south central Oklahoma are asking the state Department of Mines to redo several permits where the agency didn’t disclose a hearing officer and an attorney for the mining companies used to be married.
The opponents, including members of the Citizens for the Protection of the Arbuckle Simpson Aquifer, said nobody at the agency told them the informal conference officer and the attorney also have a daughter together. They said those disclosures should have been made to all parties involved in the hearings.
The prior relationship was common knowledge at the state agency, which issues permits, inspects mines and promotes safety in coal mining and mining for limestone, sand, granite and other minerals. Yet the agency kept assigning the informal hearing officer, John Sheridan, to cases where the attorney, Elizabeth Nichols, represented mining companies.
“We’ve spent the last decade assuming the agency was protecting our due process rights,” said Amy Ford, a board member for Citizens for the Protection of the Arbuckle Simpson Aquifer. “It’s frustrating to learn that was not the case. They have knowingly done this, not just to us but to others. This may be a little agency, but it makes monumental decisions.”
Ford said residents and landowners who have questions and concerns about proposed aggregate mines already feel like the regulatory process is stacked against them. Most aggregate mines are large industrial operations that use a lot of groundwater in the extracting process.
The agency has been held up as an example of effective state regulation as Oklahoma fights off a federal government attempt to assert jurisdiction for coal mines on Indian lands affected by last year’s McGirt decision.
Records show Sheridan and Nichols were both involved in informal hearings for seven non-coal permits or permit revisions going back to at least 2017. Not disclosing their prior relationship violated the due process rights for parties opposing the permits and had at least the appearance of a conflict of interest, said attorney Krystina Phillips in a legal memo for the landowners opposing the permits.
“In each of the seven proceedings affected by this lack of due process, the (Department of Mines) should nullify and reverse the administrative proceedings and require the applicant to begin the administrative process anew — this time with informal conference officers who do not have personal and financial ties with the attorneys appearing before them,” Phillips wrote.
The Department of Mine general counsel, Jonathan Allen, said the agency could not comment “because of threatened litigation.”
The group of landowners and residents filed a lawsuit on Wednesday with the Oklahoma Supreme Court, asking it to assume jurisdiction and protect their due process rights in administrative hearings. A hearing is scheduled for Oct. 13.
Nichols said it was awkward to have an ex-spouse involved in the hearings but that her clients didn’t get any special treatment. She told her clients that Sheridan was her ex-husband but they weren’t friends.
“I was representing clients prior to the Department of Mines retaining him as an informal conference officer,” Nichols said. “They told me about it and I was like, ‘I’ve got to be honest, I’m not real jazzed about that.’ They said he’s the one person they had.”
Sheridan did not return messages seeking comment.
Public records show Sheridan and Nichols married in 1996 in Arkansas. They had a daughter in 1997 and divorced in 1999, according to records from Wagoner County. The couple shared joint custody of their daughter when she was a minor, although Nichols said Sheridan hasn’t seen their daughter, now 24, since she was in the fifth or sixth grade.
Sheridan, an attorney, voluntarily surrendered his law license in 2004 after being accused in bar complaints of taking client trust money and not faithfully representing clients. Sheridan also sued Nichols in 2012, claiming he did work for her as a paralegal on a case in Rogers County but was never paid. Nichols denied hiring him, and the case was later settled.
State financial records show Sheridan has been paid at least $19,500 by the Department of Mines since July 2015 for legal services, including serving as an informal conference officer. Agency officials did not respond to follow-up questions on the qualifications needed to be a hearing officer and how many hearing officers the agency has under contract.
Informal conferences on permits for aggregate mining are used to gather additional information about the company’s plans and give nearby residents a chance to comment. But the protesting residents can’t bring their own witnesses or cross-examine company witnesses. After consideration of the issues, the informal conference officer then issues a recommendation to the agency to approve the permit, deny it or approve it with conditions.
“The informal conference is a huge misnomer,” said Ford, with the Arkbuckle-Simpson aquifer protection group. “They take evidence and do everything. When the Department of Mines makes a decision on an application, those decisions impact generations. These are not inconsequential decisions they’re making.”
Nichols said the role of an informal conference officer isn’t judicial in nature.
“They’re not deciding if my client gets a permit or not,” Nichols said. “If that was the case, I would not have been OK with any of it. They don’t make any decisions; they just report on people’s complaints about an application.”
Any party can appeal the agency’s decision in a formal hearing, which is set up more like a court hearing. In practice, few decisions get to that level and the agency doesn’t typically consider issues that weren’t already raised in the informal conference. The Department of Mines received 64 non-coal permit applications in fiscal year 2019 and approved 48 of them. The numbers were similar for fiscal year 2020, according to information provided to state budget officials.
McGirt Fallout On Coal Mining
The allegations about the informal hearings come as the Department of Mines deals with the ongoing fallout from the U.S. Supreme Court’s McGirt decision. Earlier this year, the U.S. Department of the Interior told the agency it would be taking over jurisdiction of coal mining on Indian lands affected by the decision. The Interior Department also stopped payments on already approved federal grants to the Department of Mines and the Oklahoma Conservation Commission for mine safety and reclamation projects.
The Stitt administration sued the federal government in federal court in Oklahoma City, claiming the Interior Department didn’t give Oklahoma enough warning and the decision was “arbitrary and capricious.” It also said the McGirt decision was limited to criminal proceedings and didn’t extend to regulatory proceedings regarding surface coal mining and reclamation.
“This action ignores the law and the reality that Oklahoma has managed these operations for decades,” Oklahoma Solicitor General Mithun Mansinghani said when the state filed the lawsuit in July. “The administration’s action jeopardizes the safe operation of coal mining and mine reclamation, state funding and the jobs of state employees that have been performing this work for many years.”
At an Aug. 25 meeting of the Oklahoma Mining Commission in Durant, Mary Ann Pritchard, the agency’s director, said the federal government’s decision to pull grant funds meant a loss of more than $600,000 to the agency, or about 15% of its annual budget. She said agency officials have been talking to legislative budget leaders about a supplemental appropriation request for this fiscal year, which started July 1.
The federal government has not given any indications it intends to assert any post-McGirt decision jurisdiction on the non-coal division at the Department of Mines.
Paul Monies has been a reporter with Oklahoma Watch since 2017. He covers state agencies and public health. Call or text him at (571) 319-3289 or email firstname.lastname@example.org. Follow him on Twitter at @pmonies.