I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background
We have a creek - Tar Creek - which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA's longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights - basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:
How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?
If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?
What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring
City Attorney
bloring@miamiokla.netmailto:bloring@miamiokla.net
W: (918) 541-2204
C: (918) 533-6533
129 5th Avenue N. W.
P.O. Box 1288
Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

It has been several years since I have researched a similar issue, but my understanding is that a municipality has no right to create a legal cause of action.  Nor can a city create rights in an inanimate object.  An ordinance might create a standard of care applicable to a state-created tort regime (e.g., negligence).  State law gives cities the power to declare certain things to constitute a nuisance.  But I do not believe that city can create private rights in an innate piece of property.  The City would already have the right to file an action (if one exists) to redress its rights, and whether an individual citizen could sue would depend upon the nature of the rights asserted in the claim.

City may want to file a protest.  11 O.S. § 15-104.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 938-9108

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Ben Loring Bloring@miamiokla.net
Sent: Wednesday, June 2, 2021 11:49 AM
To: oama@lists.imla.org
Cc: Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net
Subject: [Oama] Initiative Petition

I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background
We have a creek - Tar Creek - which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA's longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights - basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:
How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?
If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?
What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring
City Attorney
bloring@miamiokla.netmailto:bloring@miamiokla.net
W: (918) 541-2204
C: (918) 533-6533
129 5th Avenue N. W.
P.O. Box 1288
Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

I'm pretty sure the courts will say that a municipal ordinance conferring jurisdiction on the courts to award attorney fees, costs, and damages won't be valid.  A municipal initiative petition must be "legislative" in nature (not administrative), and it must fall within the legislative powers of the municipal corporation.  Municipalities have no power to over the jurisdiction of the courts and the relief that courts can grant, except for municipal courts and the amount of fines, etc., for violation of ordinances.  But I don't have a case in hand to give you.  There may be a case, but I just think the court will say that the city has no express or implied power to control the jurisdiction and the remedies to be awarded by courts.  That's not part of the "legislative" authority vested in municipal corporations by state law or municipal charter cities.  Even if you have a general police power clause in your charter, conferring jurisdiction on State courts and providing for specific remedies for State courts isn't an exercise of police power.  A cities power over courts extends only to municipal courts, which are courts of limited jurisdiction over criminal misdemeanors due to the violation of municipal ordinances.  (Additionally, a creek will not have capacity to bring a lawsuit.)

Now as far as a municipality prohibiting pollution of a water source, possibly that works if the water source is the water supply for the municipality.  Not sure it works of the water source isn't part of the municipalities water supply.  Craig Keith is the guy you need to talk to on that subject because he knows about 100 times as much water law as I do.  He can probably give you some input.

From: Jon Miller jonmiller@jem-pc.com
Sent: Wednesday, June 2, 2021 2:27 PM
To: Ben Loring Bloring@miamiokla.net; oama@lists.imla.org
Cc: Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net
Subject: [Oama] Re: Initiative Petition

It has been several years since I have researched a similar issue, but my understanding is that a municipality has no right to create a legal cause of action.  Nor can a city create rights in an inanimate object.  An ordinance might create a standard of care applicable to a state-created tort regime (e.g., negligence).  State law gives cities the power to declare certain things to constitute a nuisance.  But I do not believe that city can create private rights in an innate piece of property.  The City would already have the right to file an action (if one exists) to redress its rights, and whether an individual citizen could sue would depend upon the nature of the rights asserted in the claim.

City may want to file a protest.  11 O.S. § 15-104.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 938-9108

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>
Sent: Wednesday, June 2, 2021 11:49 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Initiative Petition

I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background
We have a creek - Tar Creek - which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA's longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights - basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:
How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?
If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?
What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring
City Attorney
bloring@miamiokla.netmailto:bloring@miamiokla.net
W: (918) 541-2204
C: (918) 533-6533
129 5th Avenue N. W.
P.O. Box 1288
Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.

Ben:

I have read your scenario several times, as well as the guidance offered by two (2) wonderful, experienced municipal attorneys.  You describe the Petitioners are "solid citizens" who are "pillars of the community" and concerned about future contamination.  How refreshing!  It seems as if most of the citizens that I deal with lately don't fall in either of those categories!

Most people don't really understand the difference between a resolution and an ordinance.  Someone probably saw what they did in Florida and thought that they had nothing to lose by using that format.  I wonder if there is value in meeting with the key players to see if they would be willing to withdraw their Petition if the City adopted a Resolution.  You could use recitals to discuss the history, the citizens' concerns, the impact to health, safety, and welfare of the community, and the City's commitment to ensuring compliance with EPA and ODEQ guidelines.  The action could be to have the Council express a willingness to work with the Tribe, the State, and the Federal Government on remediation efforts, and note that future, appropriate action will be considered by the Council following presentation to the City Manager.  You would obviously need to ensure that it is non-binding on future Councils.  This might be, however, a good way to acknowledge the concerns of the citizens and to express its support for the environment.  It may also help with the politics and optics.

I hope that some of this is helpful, but remember to stick strictly with the statutory deadlines so as to avoid any issues.  If you need a template for the Resolution, please let me know.

Beth Anne

Beth Anne Childs

The Childs Law Firm, PLLC

1015 South Detroit Avenue

Tulsa, Oklahoma. 74120

(918) 521-3092

From: Ben Loring Bloring@miamiokla.net
Sent: Wednesday, June 2, 2021 11:49 AM
To: oama@lists.imla.org oama@lists.imla.org
Cc: Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net
Subject: [Oama] Initiative Petition

I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background

We have a creek – Tar Creek – which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA’s longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights – basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:

How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?

If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?

What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring

City Attorney

bloring@miamiokla.netmailto:bloring@miamiokla.net

W: (918) 541-2204

C: (918) 533-6533

129 5th Avenue N. W.

P.O. Box 1288

Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

Attached are some cases suggested by Craig Keith for your consideration.

Wiley "Butch" Williams
Deputy Municipal Counselor
200 N. Walker,  4th Floor
Oklahoma City, Oklahoma 73102
Direct: 405-297-2685
Mobile: 405-824-5198

From: Jordan, Kenneth kenneth.jordan@okc.gov
Sent: Wednesday, June 2, 2021 3:16 PM
To: Ben Loring Bloring@miamiokla.net; oama@lists.imla.org; Williams, Wiley L wiley.williams@okc.gov
Cc: Keith, Craig B. craig.keith@okc.gov; Mann, Patricia I patricia.mann@okc.gov; Jon Miller jonmiller@jem-pc.com; Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net; Carpenter, Amanda B amanda.carpenter@okc.gov
Subject: FW: Initiative Petition

I'm pretty sure the courts will say that a municipal ordinance conferring jurisdiction on the courts to award attorney fees, costs, and damages won't be valid.  A municipal initiative petition must be "legislative" in nature (not administrative), and it must fall within the legislative powers of the municipal corporation.  Municipalities have no power to over the jurisdiction of the courts and the relief that courts can grant, except for municipal courts and the amount of fines, etc., for violation of ordinances.  But I don't have a case in hand to give you.  There may be a case, but I just think the court will say that the city has no express or implied power to control the jurisdiction and the remedies to be awarded by courts.  That's not part of the "legislative" authority vested in municipal corporations by state law or municipal charter cities.  Even if you have a general police power clause in your charter, conferring jurisdiction on State courts and providing for specific remedies for State courts isn't an exercise of police power.  A cities power over courts extends only to municipal courts, which are courts of limited jurisdiction over criminal misdemeanors due to the violation of municipal ordinances.  (Additionally, a creek will not have capacity to bring a lawsuit.)

Now as far as a municipality prohibiting pollution of a water source, possibly that works if the water source is the water supply for the municipality.  Not sure it works of the water source isn't part of the municipalities water supply.  Craig Keith is the guy you need to talk to on that subject because he knows about 100 times as much water law as I do.  He can probably give you some input.

From: Jon Miller <jonmiller@jem-pc.commailto:jonmiller@jem-pc.com>
Sent: Wednesday, June 2, 2021 2:27 PM
To: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>; oama@lists.imla.orgmailto:oama@lists.imla.org
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Re: Initiative Petition

It has been several years since I have researched a similar issue, but my understanding is that a municipality has no right to create a legal cause of action.  Nor can a city create rights in an inanimate object.  An ordinance might create a standard of care applicable to a state-created tort regime (e.g., negligence).  State law gives cities the power to declare certain things to constitute a nuisance.  But I do not believe that city can create private rights in an innate piece of property.  The City would already have the right to file an action (if one exists) to redress its rights, and whether an individual citizen could sue would depend upon the nature of the rights asserted in the claim.

City may want to file a protest.  11 O.S. § 15-104.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 938-9108

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>
Sent: Wednesday, June 2, 2021 11:49 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Initiative Petition

I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background
We have a creek - Tar Creek - which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA's longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights - basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:
How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?
If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?
What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring
City Attorney
bloring@miamiokla.netmailto:bloring@miamiokla.net
W: (918) 541-2204
C: (918) 533-6533
129 5th Avenue N. W.
P.O. Box 1288
Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.

Craig, Is the case covered by the briefs still on appeal?  No decision yet?

From: Williams, Wiley L wiley.williams@okc.gov
Sent: Wednesday, June 2, 2021 4:33 PM
To: Jordan, Kenneth; Ben Loring; oama@lists.imla.org
Cc: Keith, Craig B.; Mann, Patricia I; Jon Miller; Krista Duhon; Melissa Moore; Carpenter, Amanda B
Subject: RE: Initiative Petition

Attached are some cases suggested by Craig Keith for your consideration.

Wiley “Butch” Williams
Deputy Municipal Counselor
200 N. Walker,  4th Floor
Oklahoma City, Oklahoma 73102
Direct: 405-297-2685
Mobile: 405-824-5198

From: Jordan, Kenneth kenneth.jordan@okc.gov
Sent: Wednesday, June 2, 2021 3:16 PM
To: Ben Loring Bloring@miamiokla.net; oama@lists.imla.org; Williams, Wiley L wiley.williams@okc.gov
Cc: Keith, Craig B. craig.keith@okc.gov; Mann, Patricia I patricia.mann@okc.gov; Jon Miller jonmiller@jem-pc.com; Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net; Carpenter, Amanda B amanda.carpenter@okc.gov
Subject: FW: Initiative Petition

I’m pretty sure the courts will say that a municipal ordinance conferring jurisdiction on the courts to award attorney fees, costs, and damages won’t be valid.  A municipal initiative petition must be “legislative” in nature (not administrative), and it must fall within the legislative powers of the municipal corporation.  Municipalities have no power to over the jurisdiction of the courts and the relief that courts can grant, except for municipal courts and the amount of fines, etc., for violation of ordinances.  But I don’t have a case in hand to give you.  There may be a case, but I just think the court will say that the city has no express or implied power to control the jurisdiction and the remedies to be awarded by courts.  That’s not part of the “legislative” authority vested in municipal corporations by state law or municipal charter cities.  Even if you have a general police power clause in your charter, conferring jurisdiction on State courts and providing for specific remedies for State courts isn’t an exercise of police power.  A cities power over courts extends only to municipal courts, which are courts of limited jurisdiction over criminal misdemeanors due to the violation of municipal ordinances.  (Additionally, a creek will not have capacity to bring a lawsuit.)

Now as far as a municipality prohibiting pollution of a water source, possibly that works if the water source is the water supply for the municipality.  Not sure it works of the water source isn’t part of the municipalities water supply.  Craig Keith is the guy you need to talk to on that subject because he knows about 100 times as much water law as I do.  He can probably give you some input.

From: Jon Miller <jonmiller@jem-pc.commailto:jonmiller@jem-pc.com>
Sent: Wednesday, June 2, 2021 2:27 PM
To: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>; oama@lists.imla.orgmailto:oama@lists.imla.org
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Re: Initiative Petition

It has been several years since I have researched a similar issue, but my understanding is that a municipality has no right to create a legal cause of action.  Nor can a city create rights in an inanimate object.  An ordinance might create a standard of care applicable to a state-created tort regime (e.g., negligence).  State law gives cities the power to declare certain things to constitute a nuisance.  But I do not believe that city can create private rights in an innate piece of property.  The City would already have the right to file an action (if one exists) to redress its rights, and whether an individual citizen could sue would depend upon the nature of the rights asserted in the claim.

City may want to file a protest.  11 O.S. § 15-104.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 938-9108

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>
Sent: Wednesday, June 2, 2021 11:49 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Initiative Petition

I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background
We have a creek – Tar Creek – which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA’s longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights – basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:
How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?
If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?
What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring
City Attorney
bloring@miamiokla.netmailto:bloring@miamiokla.net
W: (918) 541-2204
C: (918) 533-6533
129 5th Avenue N. W.
P.O. Box 1288
Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

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Still on appeal.
Craig Keith

Get Outlook for iOShttps://aka.ms/o0ukef

From: Jordan, Kenneth kenneth.jordan@okc.gov
Sent: Wednesday, June 2, 2021 6:27:44 PM
To: Williams, Wiley L wiley.williams@okc.gov; Ben Loring Bloring@miamiokla.net; oama@lists.imla.org oama@lists.imla.org
Cc: Keith, Craig B. craig.keith@okc.gov; Mann, Patricia I patricia.mann@okc.gov; Jon Miller jonmiller@jem-pc.com; Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net; Carpenter, Amanda B amanda.carpenter@okc.gov
Subject: Re: Initiative Petition

Craig, Is the case covered by the briefs still on appeal?  No decision yet?

From: Williams, Wiley L wiley.williams@okc.gov
Sent: Wednesday, June 2, 2021 4:33 PM
To: Jordan, Kenneth; Ben Loring; oama@lists.imla.org
Cc: Keith, Craig B.; Mann, Patricia I; Jon Miller; Krista Duhon; Melissa Moore; Carpenter, Amanda B
Subject: RE: Initiative Petition

Attached are some cases suggested by Craig Keith for your consideration.

Wiley “Butch” Williams

Deputy Municipal Counselor

200 N. Walker,  4th Floor

Oklahoma City, Oklahoma 73102

Direct: 405-297-2685

Mobile: 405-824-5198

From: Jordan, Kenneth kenneth.jordan@okc.gov
Sent: Wednesday, June 2, 2021 3:16 PM
To: Ben Loring Bloring@miamiokla.net; oama@lists.imla.org; Williams, Wiley L wiley.williams@okc.gov
Cc: Keith, Craig B. craig.keith@okc.gov; Mann, Patricia I patricia.mann@okc.gov; Jon Miller jonmiller@jem-pc.com; Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net; Carpenter, Amanda B amanda.carpenter@okc.gov
Subject: FW: Initiative Petition

I’m pretty sure the courts will say that a municipal ordinance conferring jurisdiction on the courts to award attorney fees, costs, and damages won’t be valid.  A municipal initiative petition must be “legislative” in nature (not administrative), and it must fall within the legislative powers of the municipal corporation.  Municipalities have no power to over the jurisdiction of the courts and the relief that courts can grant, except for municipal courts and the amount of fines, etc., for violation of ordinances.  But I don’t have a case in hand to give you.  There may be a case, but I just think the court will say that the city has no express or implied power to control the jurisdiction and the remedies to be awarded by courts.  That’s not part of the “legislative” authority vested in municipal corporations by state law or municipal charter cities.  Even if you have a general police power clause in your charter, conferring jurisdiction on State courts and providing for specific remedies for State courts isn’t an exercise of police power.  A cities power over courts extends only to municipal courts, which are courts of limited jurisdiction over criminal misdemeanors due to the violation of municipal ordinances.  (Additionally, a creek will not have capacity to bring a lawsuit.)

Now as far as a municipality prohibiting pollution of a water source, possibly that works if the water source is the water supply for the municipality.  Not sure it works of the water source isn’t part of the municipalities water supply.  Craig Keith is the guy you need to talk to on that subject because he knows about 100 times as much water law as I do.  He can probably give you some input.

From: Jon Miller <jonmiller@jem-pc.commailto:jonmiller@jem-pc.com>
Sent: Wednesday, June 2, 2021 2:27 PM
To: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>; oama@lists.imla.orgmailto:oama@lists.imla.org
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Re: Initiative Petition

It has been several years since I have researched a similar issue, but my understanding is that a municipality has no right to create a legal cause of action.  Nor can a city create rights in an inanimate object.  An ordinance might create a standard of care applicable to a state-created tort regime (e.g., negligence).  State law gives cities the power to declare certain things to constitute a nuisance.  But I do not believe that city can create private rights in an innate piece of property.  The City would already have the right to file an action (if one exists) to redress its rights, and whether an individual citizen could sue would depend upon the nature of the rights asserted in the claim.

City may want to file a protest.  11 O.S. § 15-104.

Jonathan E. Miller

City Attorney

City of Mustang

1501 N. Mustang Road

Mustang, Oklahoma 73064

Telephone: (405) 938-9108

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.  Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including attachments) is not intended or written to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>
Sent: Wednesday, June 2, 2021 11:49 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Initiative Petition

I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background

We have a creek – Tar Creek – which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA’s longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights – basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:

How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?

If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?

What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring

City Attorney

bloring@miamiokla.netmailto:bloring@miamiokla.net

W: (918) 541-2204

C: (918) 533-6533

129 5th Avenue N. W.

P.O. Box 1288

Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

CONFIDENTIALITY NOTE: This e-mail message and any attachments are intended solely for the person to which it is addressed and may contain privileged and confidential information protected by law. If you have received this communication in error, please notify the sender immediately by telephone or e-mail, destroy this message and delete any copies held in your electronic files. Unauthorized use and/or re-disclosure may subject you to penalties under applicable state and federal laws.

Ben,

I, unfortunately, don't have much of a substantive response, but this thought of recognizing the inherent rights of a waterbody (or, more generally, nature) has been growing around the globe.  For example, New Zealand, Peru, India, and Bolivia have all-in some form or fashion-acknowledged the rights of nature and/or waterbodies.  Even here in Oklahoma, the Ponca Tribe of Indians of Oklahoma amended its criminal code to make pollution of Salt Creek a criminal offense that can be prosecuted in its tribal court.

The City of Tishomingo approved two ordinances based on 50 O.S. § 16, and declared it a nuisance to, among other things, degrade the water quality of Pennington Creek, which serves as its sole source of potable water.  The statute authorizes a municipality to reach outside its corporate limits to stop a nuisance.  The ordinances were challenged and upheld in District Court and are now awaiting a decision from the Oklahoma Court of Civil Appeals.  Please let me know if you'd like those ordinances or court filings.

I'm relatively new to this city attorney gig, but have been involved in water law for the past decade.  I'm always happy to talk water (or municipal law-although I probably won't be as helpful in that area)!

Best wishes,

Krystina E. Phillips
Indian & Environmental Law Group, PLLC
117 S. Ash Street
Ada, OK 74820
krystina@iaelaw.com
(580) 453-7051
(918) 948-6190 (fax)

NOTICE: This email (including attachments) is confidential and may be legally privileged.  If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited.  Please reply to the sender if you have received the message in error, then delete it.

From: Beth Anne Childs bethanne@thechildsfirm.com
Sent: Wednesday, June 2, 2021 4:31 PM
To: Ben Loring Bloring@miamiokla.net; oama@lists.imla.org
Cc: Krista Duhon kduhon@miamiokla.net; Melissa Moore MMoore@miamiokla.net
Subject: [Oama] Re: Initiative Petition

Ben:

I have read your scenario several times, as well as the guidance offered by two (2) wonderful, experienced municipal attorneys.  You describe the Petitioners are "solid citizens" who are "pillars of the community" and concerned about future contamination.  How refreshing!  It seems as if most of the citizens that I deal with lately don't fall in either of those categories!

Most people don't really understand the difference between a resolution and an ordinance.  Someone probably saw what they did in Florida and thought that they had nothing to lose by using that format.  I wonder if there is value in meeting with the key players to see if they would be willing to withdraw their Petition if the City adopted a Resolution.  You could use recitals to discuss the history, the citizens' concerns, the impact to health, safety, and welfare of the community, and the City's commitment to ensuring compliance with EPA and ODEQ guidelines.  The action could be to have the Council express a willingness to work with the Tribe, the State, and the Federal Government on remediation efforts, and note that future, appropriate action will be considered by the Council following presentation to the City Manager.  You would obviously need to ensure that it is non-binding on future Councils.  This might be, however, a good way to acknowledge the concerns of the citizens and to express its support for the environment.  It may also help with the politics and optics.

I hope that some of this is helpful, but remember to stick strictly with the statutory deadlines so as to avoid any issues.  If you need a template for the Resolution, please let me know.

Beth Anne

Beth Anne Childs

The Childs Law Firm, PLLC

1015 South Detroit Avenue

Tulsa, Oklahoma. 74120

(918) 521-3092

From: Ben Loring <Bloring@miamiokla.netmailto:Bloring@miamiokla.net>
Sent: Wednesday, June 2, 2021 11:49 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org <oama@lists.imla.orgmailto:oama@lists.imla.org>
Cc: Krista Duhon <kduhon@miamiokla.netmailto:kduhon@miamiokla.net>; Melissa Moore <MMoore@miamiokla.netmailto:MMoore@miamiokla.net>
Subject: [Oama] Initiative Petition

I have followed your discussions for a few years but have never gotten involved.  Shame on me.  But, you guessed it, now I need help.  Yesterday, we had an initiative petition filed with the city clerk.  This is the first ever, if not in the history of the city, certainly the first one in the tenure of anyone currently with the city.  I think I have a fairly good grasp of the procedures and I know the immediate issue is that I have 3 days to approve the ballot title or, alternatively, prepare and submit my own version. The form and gist appear to be okay.  But my questions are more of a substantive nature than procedural.

Background

We have a creek - Tar Creek - which runs through town.  It originates in Kansas and parts of the creek and its watershed constitute the EPA's longest in duration and largest in size superfund site, but none of the City is within the Site boundaries.  In that watershed are the remains of the richest lead and zinc mines which are all closed now but the groundwater from those mines, laden with lead, zinc and many other dangerous heavy metals, all dump into the creek.  The Superfund Site is in its waning stages; the Quapaw Nation has taken over the majority of the remediation effort and while the Creek is still contaminated, it is much better than when it was at its worst.

Miami is a Charter city, but the petition is only for an ordinance.  The gist of the  petition is that the proposed ordinance recognizes Tar Creek as an entity with its own rights - basically to flow and be clean, although it recognizes that it is not clean right now.  If anybody or any entity should take any future  action that further contaminates the Creek as it flows through Miami, the ordinance authorizes the filing in District Court of a lawsuit by the Creek itself, the City of Miami or any of its citizens against whoever caused the issue.  They can recover litigation costs and attorney fees and damages in the amount of what it takes to remediate the problem.  All such damages recovered would then go to the City, which, in turn, can then only spend that money to restore the Creek to its condition prior to the violation.

Questions:

How can a city ordinance create a cause of action in and grant jurisdiction to the District Court?

If it can, the  events that would create such a cause of action would most likely occur upstream, OUTSIDE of city limits.  I confess my lack of any great understanding of riparian rights, but how can we do that?  If money is recovered, how can Miami expend it to fix the problem if it is outside of city limits?

What other relevant questions should be discussed which I have not considered?

I have read some about a county ordinance in Orange County, Florida, that was set up by initiative petition which does much the same thing as this, but, obviously, I little  know Florida law.  I should also point out the petitioners in this case are all good solid citizens, pillars of the community with a shared concern about the Creek that was once pristine and scenic.  It was along its banks that our wealthiest founding fathers all wanted to build their homes.  The Creek also runs through our local college campus (inside city limits).  As always in small town America, there are a lot of political implications that come into play along with the legal issues.

Ben Loring

City Attorney

bloring@miamiokla.netmailto:bloring@miamiokla.net

W: (918) 541-2204

C: (918) 533-6533

129 5th Avenue N. W.

P.O. Box 1288

Miami, OK 74355

This message and its attachments may contain confidential and/or privileged information. If you are not the intended recipient or authorized to receive this for the intended recipient, you must not use, copy, disclose or take any action based on this message or any information herein. If you have received this message in error, please advise the sender immediately by sending a reply e-mail and delete this message. Thank you for your cooperation.

Hello all!

I represent a small city that passed a resolution back in 2018 approving and adopting the 2018 Supplement of the 2016 Municipal Code pursuant to statute (11 OS 14-109 and 14-110).  Unfortunately, this resolution was never filed with the County Clerk’s Office as further required by statute.  Now a citizen is asking to be put on the council agenda to discuss this non-compliance with the statutes.  What are the ramifications for the failure to file this with the County Clerk and what is the best remedy?
Thanks in advance!

William W. Wheeler, Jr.
Mueller, Wheeler & Associates, PLLC
Attorney at Law
106 S. Division St.
P.O. Box 1201
Guthrie, OK 73044
(405) 282-7677
Fax (405) 708-5356
smueller@oktitleattorney.com
www.sherimuellerattorney.com

This message from the law office of Mueller, Wheeler & Associates, PLLC may contain confidential or privileged information. If you received this transmission in error, please call us immediately at (405)282-7677 or contact us by E-mail at smueller@oktitleattorney.com. Disclosure or use of any part of this message by persons other than the intended recipient is prohibited.

I would get the 2018 resolution filed ASAP and if at all possible get a new supplement and resolution ready for the same council agenda where the citizen is going to speak. The statute says that “No municipal ordinance shall be enforced if it is not reflected in such a permanent volume or supplement if the ordinance was adopted before the latest compilation or supplement.” (the concurring opinion in WEIS v. CITY OF OKLAHOMA CITY, 1981 OK CR 133, 636 P.2d 346 has a pretty good explanation). Any ordinances that are NOT reflected in a permanent volume or in a properly filed and noticed supplement can’t be enforced until they’ve been published/noticed in accordance with statute. If this has only been going on for 3 years, it seems like most of your ordinances would still be enforceable.

I haven’t considered what to do if any were enforced (e.g. with fines) that were not properly filed/published. I’ll leave that to someone else.

Teresa Nowlin | City Attorney
211 North Elm | P.O Box 2007 | Jenks, OK 74037
918-299-5883 Office

From: William Wheeler wwheeler@oktitleattorney.com
Sent: Friday, June 4, 2021 3:00 PM
To: oama@lists.imla.org
Subject: [Oama] Filling of Municipal Code with County Clerk

[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
Hello all!

I represent a small city that passed a resolution back in 2018 approving and adopting the 2018 Supplement of the 2016 Municipal Code pursuant to statute (11 OS 14-109 and 14-110).  Unfortunately, this resolution was never filed with the County Clerk’s Office as further required by statute.  Now a citizen is asking to be put on the council agenda to discuss this non-compliance with the statutes.  What are the ramifications for the failure to file this with the County Clerk and what is the best remedy?
Thanks in advance!

William W. Wheeler, Jr.
Mueller, Wheeler & Associates, PLLC
Attorney at Law
106 S. Division St.
P.O. Box 1201
Guthrie, OK 73044
(405) 282-7677
Fax (405) 708-5356
smueller@oktitleattorney.commailto:smueller@oktitleattorney.com
www.sherimuellerattorney.comhttp://www.sherimuellerattorney.com

This message from the law office of Mueller, Wheeler & Associates, PLLC may contain confidential or privileged information. If you received this transmission in error, please call us immediately at (405)282-7677 or contact us by E-mail at smueller@oktitleattorney.commailto:smueller@oktitleattorney.com. Disclosure or use of any part of this message by persons other than the intended recipient is prohibited.