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Plaintiff Entitled to be Heard


By Ellen Smith

In an appeal argued in the District Court of Sequoyah County, Okla. – J. Jeffrey Payton, Judge – a plaintiff/appellee, Michael Daffin, claimed he 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, the plaintiff, who lived more than one mile, but within the same county, was advised he could not participate.

The 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 the plaintiff's rights to due process and the constitutionality of the ODM rules and statutes could be considered.

The judge concluded that “the question before us is not whether Daffin should be charged with actual notice of a pending mining application but merely failed to act. In fact, the newspaper notice in his county apprised him that a permit application had been filed by T & M. It is well documented that he knew the informal conference had been set and that he was aware he could request a formal hearing after a decision was made at the informal conference. However, it is also well documented that despite Daffin's awareness and his attempt to be heard at the informal conference, he was told he could attend, but that he could not participate.

“Despite his alleged ownership of a home in the vicinity of the proposed mining location, he would be required merely to observe the admission of evidentiary materials and statements from other interested property owners, but wait until the hearing officer made a record and issued a decision before being allowed to be heard. Moreover, under the ODM rules, Daffin is not one who would be given notice of the decision under Rule 460:10–17–11(c), but he would have only 30 days in which to request a formal administrative hearing.

“We make no judgment as to whether the type of property interest at stake here is more or less deserving of due process than was the potential threat of ground-water contamination in DuLaney. Moreover, we do not decide whether the positions of Daffin or other property owners at the informal conference will be, or should be, sustained. We merely hold they are entitled to be heard.

“The ODM statute and rule limiting Daffin's right to participate in the post-decisional stage of these proceedings do not pass constitutional muster. The trial court's order granting a temporary injunction is affirmed.”