Citizens for the Prot. Aquifer v. Okla. Dep't of Mines

• Decision Date: 26 July 2018
• Docket Number: Case No. 115,859
• Parties: CITIZENS FOR the PROTECTION OF the ARBUCKLE-SIMPSON AQUIFER, Petitioner/Appellant, v. OKLAHOMA DEPARTMENT OF MINES, Respondent/Appellee, and Arbuckle Aggregates, LLC, Intervenor.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

437 P.3d 1074

CITIZENS FOR the PROTECTION OF the ARBUCKLE-SIMPSON AQUIFER, Petitioner/Appellant,

v. OKLAHOMA DEPARTMENT OF MINES, Respondent/Appellee,andArbuckle Aggregates, LLC, Intervenor.

Case No. 115,859

Court of Civil Appeals of Oklahoma, Division No. 2.

FILED JULY 26, 2018

Mandate Issued: March 27, 2019

Krystina E. Phillips, INDIAN AND ENVIRONMENTAL LAW GROUP, PLLC, Ada, Oklahoma and Tyler J. Coble, CHEEK LAW FIRM, P.L.L.C., Oklahoma City, Oklahoma, for Petitioner/Appellant

Mark Secrest, CHIEF LEGAL COUNSEL, OKLAHOMA DEPARTMENT OF MINES, Oklahoma City, Oklahoma, for Respondent/Appellee

Elizabeth C. Nichols, ELIZABETH C. NICHOLS, PC, Edmond, Oklahoma, for Intervenor

P. THOMAS THORNBRUGH, CHIEF JUDGE:

¶ 1 Petitioner, Citizens for the Protection of the Arbuckle-Simpson Aquifer (CPASA), appeals from a trial court judgment upholding an order by the Oklahoma Department of Mines (ODM) granting a non-coal surface mining permit to Arbuckle Aggregates, LLC (Aggregates). Based on our review of the relevant statutory and regulatory provisions as applied to the ODM order and the record of proceedings as set forth below, we affirm the decision as modified herein and remand to ODM with instructions that the agency comply prospectively with this Court's findings concerning applicable notice, hearing, and record compilation procedures.

BACKGROUND

¶ 2 This appeal arises from a lawsuit filed by CPASA in state district court after ODM granted Aggregates' application for a permit pursuant to the Oklahoma Mining Lands Reclamation Act, 45 O.S.2011 §§ 721, et seq . (OMLRA). The record reveals a long and contentious course of litigation, reflected in a disputed administrative record containing more than 9,000 pages and leading to an agency decision that granted Aggregates a conditional permit to initiate non-coal surface mining activities on a 15-acre plot of land.

I. INITIAL APPLICATION, FIRST NOTICE AND FIRST INFORMAL CONFERENCE

¶ 3 The proceedings began in May 2010, when Aggregates submitted an application seeking a permit to mine limestone, dolomite, shale, sand, gravel, clay, and soil, using quarrying and strip mining methods,¹ on 575 acres in Johnston County. It is undisputed that the mine is ultimately expected to have a "life" of more than 50 years and be more than 200 feet deep.² It also is undisputed that the Arbuckle-Simpson Aquifer, a sensitive sole source aquifer, underlies much of Johnston County, and that the mine's proposed site is on or near the aquifer. The average depth to groundwater is not clear from the record, but testimony indicated that the water table generally is within 100 feet below the surface.³

¶ 4 At the time Aggregates submitted its initial application, ODM, following then-effective statutes and rules, published notice of it in a Johnston County newspaper. After receiving more than 300 written protests and comments, ODM scheduled an informal public conference for December 2, 2010. Numerous individuals and entities -- including surrounding landowners, CPASA, the Oklahoma Department of Wildlife Conservation, the National Park Service, and the U.S. Fish and Wildlife Service -- appeared and spoke against granting the permit. According to the transcript from that meeting, the primary concern of CPASA and many others was the effect of Aggregates' mining operation on the Arbuckle-Simpson Aquifer -- the region's principal water source -- particularly because several existing mines already operate in the area.

¶ 5 According to the December 2010 conference transcript, the ODM officer conducting the meeting announced that all persons who signed in would receive a copy of the ODM's notice of its "departmental decision" (NDD).⁴ He also announced that the gathering was "an informal conference" (IC) at which ODM was present "simply to listen to the concerns of the citizens and to make sure that we make the right decision [in] issuing this permit." Aggregates announced it was submitting supplements to its permit application. The supplements were included as exhibits to the proceeding and the conference officer announced ODM would "hold the record open" until January 14, 2011, should any of the participants want to submit additional information.⁵ Departing from its usual practice, however, ODM did not issue an NDD after the IC in December 2010.

II. AMENDED APPLICATION, SECOND INFORMAL CONFERENCE AND FIRST NDD

¶ 6 Aggregates provided additional information to ODM prior to January 14, 2011, and submitted an amended application to ODM in August 2011. This was followed by ODM's second publication of notice of the application in an area newspaper. The notice stated it was a "republication" of Aggregates' permit application notice.⁶ Although it did not mention that Aggregates had amended the application, it stated that a copy of the complete application was available for public inspection at the Johnston County Courthouse.

¶ 7 In the meantime, in March 2011, the Oklahoma Supreme Court held unconstitutional the state statute and ODM rule stating that the only persons entitled to protest the issuance of a permit were "property owners and residents of occupied dwellings who may be adversely affected located within one (1) mile" of a proposed mining operation. See Daffin v. State ex rel. Dept. of Mines , 2011 OK 22, 251 P.3d 741. As a result of Daffin , ODM's published notice in August 2011 announcing Aggregates' permit application included a statement that any landowner, resident of an occupied dwelling, public entity or agency, or "any party that may be adversely affected has the right to submit comments or object to the issuance of the permit in writing."⁷

A. Second Informal Conference

¶ 8 The August 2011 notice also drew protests and comments from numerous individuals, including CPASA, affected landowners, and federal agencies. ODM scheduled a second IC for October 4, 2011. At that conference, the presiding ODM officer again announced that the conference would result in ODM's issuance of an NDD. He stated the notice would be sent only to "qualified protestors,"⁸ although it also would be published in the newspaper. The officer read the names of 23 persons whose protests had been timely received after the last (August 2011) publication notice, and stated that those names represented qualified protesters for the conference, as well as the approximately 307 individuals whose names were "on the mail list" from the first IC.⁹ The term "qualified protestor" does not appear in ODM rules or applicable statutes, nor do we find the term used in any published Oklahoma appellate opinion.

¶ 9 A letter from Aggregates submitting an "updated copy" of its permit application was admitted as an exhibit to the second conference. The conference officer said the amended application had been available for public inspection at the Johnston County Clerk's office since August 1, 2011, and that those attending and signing in at the previous conference had received a letter informing them the application was available at the courthouse.¹⁰ He also reiterated that the proceeding was an IC "to hear the public's view."¹¹

B. First Findings and Recommendations

¶ 10 On November 2, 2011, the officer issued his findings and recommendation that Aggregates' permit application be granted conditioned upon its fulfilling a number of requirements.¹² The findings listed 24 persons identified as "[q]ualified protestants appearing by virtue of having complied with the rules," and six "[p]rotestants appearing, but not submitting a letter to ODM requesting an informal conference as required by ( 45 O.S.2001 § 724(H)(2) and (4) ) ( OAC 460:10-17-6 )."¹³ The findings also listed protesters' specific concerns, which included, in addition to the possible harm the operation might do to the Arbuckle-Simpson Aquifer, its watersheds, and nearby surface streams and springs, the following: the lack of proper notice of the supplemental materials submitted by Aggregates and lack of notice of the hearing itself; the failure of Aggregates to obtain necessary permits from other agencies concerning the operation; the alleged lack of a hydrologic study by the Oklahoma Water Resources Board (OWRB) for the site; the mining operation's effect on property values in the area; possible dust, fumes, noise, and nighttime activities associated with the operation; and the operation's impact on area wildlife.

¶ 11 Responding to these concerns, the officer's recommended prerequisites to permit approval included matters specifically addressed to the protection and conservation of water resources of the aquifer; for example, that a proposed groundwater well monitoring program (previously submitted by Aggregates) collect baseline data for a minimum of 12 months prior to commencement of mining, and that a water management plan that Aggregates was submitting to the OWRB become a part of its ODM permit. The officer also noted that, when applicable, Aggregates would need to comply with 82 O.S.2011 § 1020.2.E.1 related to management of pit water. The officer noted Aggregates had submitted two applications to OWRB for permits to use stream or surface water, and recommended that no mining activities be allowed until the OWRB approved those permits.

C. First Notice of Departmental Decision

¶ 12 On November 14, 2011, ODM issued its first NDD, indicating that Aggregates' application had been conditionally approved substantially as set forth in the conference officer's recommendations. The NDD also stated that within 30 days of receipt of the notice any "person with an interest which is or maybe adversely affected may request a formal hearing on this decision."¹⁴ A certificate of mailing in the Administrative Record indicates that copies of the conference officer's findings and recommendation, along with the first NDD, were either mailed via certified mail or via email to approximately 100 people.¹⁵

¶ 13 In response to the first NDD, Aggregates and numerous other parties requested a formal adjudicatory hearing. According to...