Request By:
Mr. Charles T. Mattingly
Marion County Attorney
10 Court Square
Lebanon, Kentucky 40033
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether the Marion County Fiscal Court can enact an ordinance relating to the recordation of conveyances of interests in oil shale. The answer is "no".
The declared purpose of the ordinance is: (1) to develop a mechanism to provide information on the extent and location of transfers of less than fee simple interests in oil shale, i.e., kerogen bearing rock strata in the county; (2) to provide for mandatory recordation by lessees of all conveyances of less than fee simple title in oil shale, excluding transfers of interest solely for the purposes of traditional oil and gas exploration and development; and (3) to provide for reasonable penalties for failure of lessee to record such conveyances within a reasonable time after such conveyance or transfer has been executed.
Findings of the fiscal court in the ordinance include the following: Such mining increases risk of flooding due to altered runoff and streamflow. Such oil shale development may imperil domestic water supplies due to alterations in the flow and chemistry of ground and surface waters. The county's land use planning function requires that such mining operations be pinpointed geographically. The tax assessment of properties requires a knowledge of such possible mining operations. There is no existing means to ensure timely recording of oil shale conveyances in the county clerk's office. It was also stated that timely public knowledge of lands secured for oil shale development is an essential regulation of commerce for the protection and convenience of the public.
You raise these specific qustions:
"(1) Does Marion County have the authority under the laws of Kentucky, sepecically KRS 67.083, to enanct the proposed ordinance?
"(2) Does the proposed ordinance, which specifically excludes transfers of traditional oil and gas interests, violate consitutional equal protection considerations?
"(3) Does Section 3(4), which requires the recordation of leases which were entered into prior to the enactment of this ordinance, violate the laws or constitution of Kentucky?"
The Supreme Court of Kentucky held in
Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), that fiscal court powers must be derived from expressly granted powers by the General Assembly. We assume that the geological and mining practices findings are supportable by expert evidence. KRS 67.083(3)(h) and (i) authorize county ordinances enacted to deal fairly and effectively with the conservation, preservation and enhancement of natural resources, including soils, water, air, vegetation and wildlife, and control of flooding.
The answer to question no. 1 is that the fiscal court of Marion County does not have authority to enact the ordinance for the reason that the recordation provisions have no basic causal connection with the statutory purpose of conservation and preservation of natural resources and flood control. Whether the instruments are recorded or not will not of itself affect the statutory purposes of KRS 67.083(3)(h) and (i). The ordinance primarily seeks the public disclosure of executed oil shale leases, which may or may not involve mining operations. Thus there is no showing that the mere recording of such instruments, as contrasted with no recording, will, of itself and standing alone, affect the basic considerations of the public safety, health and welfare, and considerations of conservation and preservation of the environment and flood control. See
Newman v. Lee, Ky., 471 S.W.2d 293 (1971).
Secondly, the matter of recording of land title instruments is preempted by KRS Chapter 382. See for example KRS 382.080 concerning mineral leases for 5 years or longer. If someone contends that Chapter 382 is inadequate in some respect, they should go to the General Assembly with that problem. Further, envision the chaos that would come about if various fiscal courts throughout Kentucky would decide to legisiate on real estate conveyances and their recordation.
Finally, there is nothing in KRS 67.080 or 67.083 which allows a fiscal court to enact an ordinance relating to the isolated recordation of oil shale leases.
Questions No. 2 and 3, under the above analysis, are academic.