Arbitrator Hears Arguments in Mining Conflict of Interest Case

Groups suing to restart the licensing process for six rock quarries in south-central Oklahoma say a conflict of interest may have tainted the process. An Oklahoma Supreme Court arbitrator recently heard from the parties in the case and said he would write a report to the Supreme Court in the coming weeks. (File photo)

The Oklahoma Department of Mines put a thumbs down on informal hearings for proposed aggregate mining permits when it failed to tell all parties that a hearing officer and corporate lawyer miners were married and had a child together, an Oklahoma Supreme Court arbitrator heard Wednesday.

But the agency’s attorney said groups suing to revive the licensing process for six rock quarries in south-central Oklahoma should take their complaints through the existing administrative route of the Mining Department before to seize the High Court.

Citizens for Aquifer Protection Arbuckle-Simpson and Atoka / Bryan Citizens for a Clean and Safe Community LLC filed a petition in court last month over the undisclosed conflicts of interest. They said the previous relationship between an informal conference agent, John Sheridan, and a mining company lawyer, Elizabeth Nichols, was common knowledge at the agency.

The informal conferences aim to hear the concerns of residents and nearby landowners regarding potential impacts to groundwater and other issues regarding mining permits or permit changes. An informal conference officer presides over the hearing and drafts a report for the agency along with its recommendations. Any party unhappy with the agency’s decision can request a formal hearing, which is more like a tribunal.

The distinctions between informal conferences and formal hearings were a key point of contention at Wednesday’s hearing. Krystina Phillips, lawyer for landowners, said her clients are expected to receive “fair and impartial” treatment in all agency processes. This did not happen when the agency repeatedly appointed Sheridan as an informal hearing agent in permits where Nichols represented mining companies.

Phillips said the agency had checked with Nichols if she was having any issues with her ex-husband Sheridan being assigned to the informal conferences, but did not let anyone else know.

“Respondents hid the conflict from the petitioners and all other citizens who sought to protect their private property rights through the administrative process,” Phillips told Arbitrator John Holden. “It does not appear, at least from my reading of the responses, that there is a legitimate dispute that the appearance of impropriety exists here.”

Jonathan Allen, general counsel for the Ministry of Mines, said the landowners were trying to bypass the agency’s expertise and judgment by forcing the Supreme Court to reject the permits and restart the process. He said each of the six permits was at a different stage and it wouldn’t be fair for mining companies to force them to start over.

Allen said informal conferences have been in the agency’s bylaws for more than 50 years and are only designed to garner public comment before a permit is considered. He said the agency’s rules do not allow informal conference officers to participate in the next stage, formal hearings.

“The person in charge of the informal conference has no power under ODM rules to exclude any evidence or exclude the participation of any party,” Allen said. “He or she will summarize the evidence in a report and identify issues the ministry needs to be aware of based on public feedback. They are only there to administer the reception of information by the department. They do not exercise any kind of judicial authority of any kind.

Allen said any bias or appearance of bias would have affected Nichols and his clients, not necessarily the landowners.

“The only party that would predictably be negatively affected by Mr. Sheridan serving in this informal capacity would be his nearly 20-year-old ex-wife,” Allen said. “This is why the Ministry of Mines only contacted Ms. Nichols.”

Nichols, representing most of the mining companies whose licenses have been challenged, said the informal proceedings were not judicial in nature and aimed only at gathering facts. She downplayed the role of the informal conference agent.

“All the informal conference agent does is act in a desk position by starting the meeting, pressing play on the recording device, indicating which party should speak first and which party must speak next, ”Nichols said.

Nichols said she was not thrilled that Sheridan was assigned to informal conferences involving her clients.

“I was informed that there would be a delay for them to find and train another informal conference agent, and I didn’t want my clients’ applications to be delayed,” she said. “There was no contact between myself and the leader of the informal conference regarding the content of the informal debates or any other matter. It is true that we share a child, but Mr. Sheridan has not had any contact with this child for over a decade.

Phillips said the informal conference was an integral part of the agency’s clearance process and that its clients did not have the option of skipping it and going straight to a formal hearing. Permit protesters bear the burden of proof at the formal hearing, she said.

“This goes against the heart of our judicial system, which prides itself on providing fair and impartial proceedings that are free from even the appearance of impartiality and bias,” said Phillips. “If the court allowed this to take place without remedying this violation of due process, the citizens of Oklahoma will never have any confidence in the proceedings of this department or any other public body if public bodies can consult a part about a potential bias and not disclose it to everyone.

Holden, the arbitrator, said he would write a report to the Supreme Court in the coming weeks.

Oklahoma Watch is a nonprofit, non-partisan news organization that produces in-depth and investigative content on a wide range of issues facing the state. For more content from Oklahoma Watch, visit oklahomawatch.org.


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