The Oklahoma Department of Mines put its thumb on the scales of informal hearings for proposed aggregate mining permits when it failed to tell all parties that a hearing officer and an attorney for mining companies used to be married and had a child together, an Oklahoma Supreme Court referee heard Wednesday.
But the agency’s attorney said the groups suing to restart the permitting process for six rock quarries in south central Oklahoma should take their complaints through the Department of Mines’ existing administrative route before petitioning the high court.
Citizens for the Protection of the Arbuckle-Simpson Aquifer and Atoka/Bryan Citizens for a Clean and Safe Community LLC filed a petition before the court last month about the undisclosed conflicts of interest. They said the prior relationship between an informal conference officer, John Sheridan, and an attorney for mining companies, Elizabeth Nichols, was common knowledge at the agency.
The informal conferences are intended to hear concerns from nearby residents and landowners about the potential impacts to groundwater and other issues regarding mining permits or permit modifications. An informal conference officer presides over the hearing and writes a report for the agency along with his or her recommendations. Any party not happy with the agency’s decision can request a formal hearing, which is set up more like a court tribunal.
The distinctions between the informal conferences and the formal hearings were a key point of contention in Wednesday’s hearing. Krystina Phillips, an attorney for the landowners, said her clients were supposed to receive “fair and impartial” treatment in all agency processes. That didn’t happen when the agency repeatedly assigned Sheridan as the informal hearing officer in permits where Nichols represented mining companies.
Phillips said the agency checked with Nichols to see if she had any issues with her ex-husband Sheridan being assigned to the informal conferences but didn’t let anyone else know.
“Respondents hid the conflict from petitioners and all other citizens who were seeking to protect their private property rights through the administrative process,” Phillips told Referee John Holden. “There doesn’t appear, at least from my reading of the responses, to be any legitimate dispute that the appearance of impropriety exists here.”
Jonathan Allen, general counsel for the Department of Mines, said the landowners were trying to short-circuit the agency’s expertise and judgment by getting the Supreme Court to toss out the permits and re-start the process. He said each of the six permits was at a different stage and it wouldn’t be fair to the mining companies to make them do it over.
Allen said the informal conferences have been in the agency’s statutes for more than 50 years and were designed only to gather public input before a permit is considered. He said the agency rules don’t allow informal conference officers to participate at the next stage, the formal hearings.
“The informal conference officer does not have any power under ODM’s rules to exclude any evidence or exclude the participation of any parties,” Allen said. “He or she will summarize the evidence in a report and identify issues for the department to be aware of based on public input. They only are there to administer the receiving of information by the department. They don’t exercise any kind of judicial authority of any kind.”
Allen said any bias or appearance of bias would have affected Nichols and her clients, not necessarily the landowners.
“The only party that would be foreseeably negatively affected by Mr. Sheridan serving in this informal capacity would be his ex-wife of nearly 20 years,” Allen said. “That was why the Department of Mines only reached out to Ms. Nichols.”
Nichols, representing most of the mining companies whose permits were questioned, said the informal proceedings were not judicial in nature and were solely to collect facts. She minimized the role of the informal conference officer.
“All the informal conference officer does is act in a clerical position by starting the meeting, pressing play on the recording device, advising which party is to speak first and which party to speak next,” Nichols said.
Nichols said she wasn’t thrilled that Sheridan was assigned to the informal conferences involving her clients.
“I was advised there would be a delay for them to locate and train another informal conference officer, and I did not want any of my clients’ applications to be delayed,” she said. “There has been no contact between myself and the informal conference officer regarding the contents of the informal proceedings or any matter. It is true we do share a child, but Mr. Sheridan has had no contact with that child for well over a decade.”
Phillips said the informal conference is an integral part of the agency’s permitting process, and her clients don’t have the option of skipping it and going straight to a formal hearing. Protesters of the permit have the burden of proof at the formal hearing, she said.
“This cuts against the heart of our judicial system, which prides itself in providing fair and impartial proceedings that are free from even the appearance of impartiality and bias,” Phillips said. “If the court were to allow this to proceed without remedying this violation of due process, Oklahoma citizens are never going to have any faith in this department’s proceedings or any other state agency if state agencies can consult with one party about a potential bias and not disclose it to everyone.”
Holden, the referee, said he would draft a report to the Supreme Court within the next few weeks.
Paul Monies has been a reporter with Oklahoma Watch since 2017 and covers state agencies and public health. Contact him at (571) 319-3289 or firstname.lastname@example.org. Follow him on Twitter @pmonies.