Daffin v. State Ex Rel.

• Decision Date: 29 March 2011
• Docket Number: No. 108084.,108084.
• Citation: 2011 OK 22,251 P.3d 741
• Court: Oklahoma Supreme Court
• Parties: Michael A. DAFFIN, Plaintiff/Appellee,v.The STATE of Oklahoma ex rel., OKLAHOMA DEPARTMENT OF MINES, and Mary Ann Pritchard, Director, Oklahoma Department of Mines, Defendants/Appellants,andT & M Sand and Gravel, Inc., Intervenor, Co–Appellant.

251 P.3d 741

2011 OK 22

Michael A. DAFFIN, Plaintiff/Appellee,

v.The STATE of Oklahoma ex rel., OKLAHOMA DEPARTMENT OF MINES, and Mary Ann Pritchard, Director, Oklahoma Department of Mines, Defendants/Appellants,andT & M Sand and Gravel, Inc., Intervenor, Co–Appellant.

No. 108084.

Supreme Court of Oklahoma.

March 29, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld Unconstitutional45 Okl.St.Ann. § 724(H)(2); Okla.Admin.Code 460:10–17–6(a)APPEAL FROM THE DISTRICT COURT OF SEQUOYAH COUNTY, OKLAHOMA; J. JEFFREY PAYTON, JUDGE¶ 0 Plaintiff/Appellee was prevented from participating in an informal conference before the Department of Mines on the application for a mining permit requested by T & M Sand and Gravel, Inc. Because the informal conference was restricted, by statute and rule, to property owners and residents living within one mile of the proposed mining site, Plaintiff, who lived more than one mile, but within the same county, was advised he could not participate. Plaintiff was granted a temporary restraining order, and the applicant, T & M, was allowed to intervene. A temporary injunction was granted to preserve the status quo until Plaintiff's rights to due process and the constitutionality of the ODM rules and statutes could be considered. This Court previously retained this case.AFFIRMEDMark Secrest, Caroleen Carman, Oklahoma Department of Mines, Oklahoma City, Oklahoma, for Appellants.Fourth Scoufos, Thomas W. Condit, Sallisaw, Oklahoma, for Appellee.Leonard M. Logan, IV, Courtney M. Wolin, Vinita, Oklahoma, for Intervenor.

OPINION

WATT, J.

¶ 1 The dispositive issue in this case is whether certain statutes and rules found in The Mining Lands Reclamation Act, 45 O.S.2001, §§ 721–738, provided sufficient procedural due process to Plaintiff/Appellee Michael A. Daffin to protect his property rights in connection with a pending application for a mining permit. We answer this question in the negative. We, therefore, affirm the temporary injunction issued by the trial court to prevent Defendant/Appellant Oklahoma Department of Mines (ODM) from holding an “informal conference” to consider the application of Intervenor/Co–Appellant T & M Sand and Gravel, Inc. (T & M), in Daffin's absence.¹ We have jurisdiction to consider this appeal, pursuant to 12 O.S. Supp.2009 993(A)(2).² This Court previously retained this case.³

FACTS AND PROCEDURAL HISTORY

¶ 2 Notice of the proposed mining operation was published in a newspaper in Sequoyah County, as required by OAC Rule 460:10–17–5.⁴ Daffin attempted to take part in an informal conference allowed under OAC Rule 460:10–17–7 ⁵ to address his concerns, prior to ODM's decision on T & M's application,⁶ about protecting his property values and the safety of all residents and property owners in the vicinity of the proposed mining operation. However, the ODM determined Daffin was not eligible to participate in the informal conference because he did not reside in, or own property within, one mile of the proposed mining site, as required by 45 O.S. Supp.2008, 724(H)(2),⁷ and OAC Rule 460:10–17–6(a).⁸

¶ 3 Daffin filed his Petition for Declaratory and Injunctive Relief on September 22, 2008. On March 12, 2009, the trial court granted T & M's motion for intervention as of right. See 12 O.S. Supp.2003, 2024(A)(2). However, on March 29, 2010, the trial court granted Daffin's motion to vacate the order granting T & M's intervention.⁹ ODM and T & M appealed.¹⁰

CONTENTIONS OF THE PARTIES

¶ 4 In his claim for declaratory relief, Daffin sought a ruling that OAC Rule 460:10–17–6 is unconstitutional “as failing to satisfy state and federal standards of due process required for administrative proceedings which may directly and adversely affect legally protected interests.” In his claim for injunctive relief, he requested that ODM be restrained from proceeding with the informal conference and application for license based on the notice provisions under Rule 460:10–17–6, or “at least ... until the constitutionality of that rule can be determined.” ¹¹

¶ 5 Appellants ODM and T & M contend, inter alia, that the trial court erred because Daffin failed to meet the standards for granting a temporary injunction. They both contend Daffin possesses an adequate remedy at law and that he failed to exhaust his administrative remedies. Appellants also assert that Daffin cannot prove that he will suffer irreparable harm if an injunction is not issued because the decision made at an informal conference is not a final decision. ODM argues that anyone aggrieved may request administrative relief under OAC Rule 460:10–17–15.¹² Thus, it contends, even potential deprivation to one's property rights is not irreparable harm because administrative review is still available.

¶ 6 We acknowledge that the ODM regulations purport to give Daffin a chance to question the reason for the Department's decision prior to issuance of the permit. The ODM contends this chance to come forward is what protects Daffin's property interest and provides him with adequate procedural due process. The ODM questions what Mr. Daffin has lost under this procedure because no permit has been issued. We believe it is the ability to protect his property interest and to be part of the ODM regulatory process in the first instance. By the time Daffin and others similarly situated are allowed to be heard, opinions and evidence will be part of the record. The record may later be expanded, but they will have forever lost the opportunity to present facts to the Department representative who makes the decision, in the same way other property owners were allowed to do so. If Daffin is required to wait for a post-decision hearing, he not only has the burden of persuading the Department representative in his favor, but also the added burden of persuading the hearing officer against the wisdom of the previous decision made by a different ODM representative. This presents an additional burden to Daffin and others in his position. Although he was told he could attend without participating, being present without a voice is not a “meaningful opportunity” to be heard. When a neighboring landowner is confronted with harm to his property, he does not have to wait until the actual infliction of such loss; he has a right to seek injunctive relief from the court. See Sharp v. 251st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546.

INJUNCTIVE RELIEF

¶ 7 It is well settled in Oklahoma that the grounds for issuing a temporary injunction are: (1) the likelihood of success on the merits, (2) irreparable harm to the party seeking injunctive relief if relief is denied, (3) relative effect on the other interested parties, and (4) public policy concerns arising out of the issuance of injunctive relief. Tulsa Order of Police Lodge No. 93 v. City of Tulsa, 2001 OK CIV APP 153, 39 P.3d 152 (cert.den.2001). The need for an injunction must be shown by clear and convincing evidence, and the nature of the injury must not be speculative in nature. House of Realty v. City of Midwest City, 2004 OK 97, 109 P.3d 314, citing Sharp v. 251st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546, 549.

¶ 8 In the present case, Plaintiff presented evidentiary materials showing that the Natural Resources Conservation Service (NRCS) of the U.S. Department of Agriculture had expressed concern about blasting that would take place in the proximity of Dam No. 33. Exhibits attached to Plaintiff's petition indicate the NRCS describes the three dams as “high hazard” dams ¹³ which do not meet current safety and performance standards. ¹⁴ Although Plaintiff does not live within one mile of the mining site, he and other residents live within the projected flood plane of Dam Site No. 32. He has provided evidentiary support that Dam No. 33 is less than 1000 yards, which is less than one mile, from the blasting site.

¶ 9 Terry Fox, a representative of Triad Environmental Services, T & M's consulting firm, testified that the NRCS requested T & M to establish blast monitoring. He stated the NRCS is in the process of refurbishing and replacing pipe to Dam No. 33 in the Sallisaw Creek Watershed flood water area and is concerned about movement in the pipe and spillway system caused by blasting. He stated the NRCS wants to set seismographs to monitor the blasting.

¶ 10 If the dams are damaged from the blasting, Plaintiff's property, and that of many others, is vulnerable. Generally, exhaustion of administrative remedies is a prerequisite for resort to the courts. However, this doctrine will not bar court action if an administrative remedy is unavailable, ineffective or would be futile. Lone Star Helicopters, Inc. v. The State of Oklahoma, 1990 OK 111, 800 P.2d 235. Such is the case here.

¶ 11 We agree with the trial court that a temporary injunction was necessary, pending a determination of the constitutionality of the ODM statute and rule, and was shown by clear and convincing evidence.

THE INFORMAL CONFERENCE

¶ 12 The Oklahoma Administrative Code (OAC) Rules set out the objectives of the subchapter pertaining to the permit review and approval process at OAC 460:10–17–2, which provides:

The objectives of this Subchapter are to:

(1) provide for public participation in the review of applications and the issuance, or denial of permits;

(2) ensure prompt and effective review of each permit application by the Department; and

(3) provide the minimum requirements for the terms and conditions of permits issued and the criteria for approval or denial of a permit.

¶ 13 As stated above, the informal conference may be requested only by a resident or property owner within one mile of the proposed mining location. At the conference, a representative of ODM may accept oral or written statements and other relevant information from any party to the conference. A record is made of the proceeding and is accessible to the parties of the conference until the final release of the applicant's performance bond or other guarantee. See Rule...