A district judge in Montana ruled Monday that a Canadian developer of a high-voltage power line has no authority to condemn private property for the project.
The decision, filed Monday, is a victory for landowners trying to limit the impact of the Montana Alberta Tie Line. It also could carry ramifications for other developers proposing transmission projects to meet demand from wind developers asking for additional shipping capacity.
“Larry Salois only wanted to protect his mother’s property from the transmission line going through historic Indian archaeological sites,” said Salois’ attorney, Hertha Lund. “He never wanted a legal battle.”
Salois is the guardian of his mother, Shirley Salois, the property owner. They live east of Cut Bank.
In July, a Montana subsidiary of Tonbridge Power Inc. of Toronto filed a complaint to condemn their land in Glacier County District Court after Salois argued the proposed route should be adjusted across his property farther from tepee rings and a wetland.
Lund argued Tonbridge could not exercise the right of eminent domain because it is not an agent of the state that has been given express legislative authority to acquire private property.
District Judge Laurie McKinnon agreed and granted Salois’ motion to dismiss the company’s condemnation complaint.
“No judicial decision that this court is aware of provides authority for MATL’s position that a private merchant transmission line, without express or implied authority for condemnation, may pursue eminent domain proceedings,” she wrote.
The Legislature’s grant of eminent domain power to governmental bodies must be strictly construed, the judge said.
Private individuals and corporations, like state agencies, have no inherent power of eminent domain, McKinnon said, and their authority to use it must be derived specifically from the Legislature.
Years ago, condemnation by a public utility for the purpose of constructing electrical power lines was authorized by legislation, the judge said. That authority allowed the former Montana Power Co. to acquire property by eminent domain.
But that legislation has since been repealed “and MATL can cite no legislative authority for its pursuit of land acquisitions by eminent domain, either expressly or by necessary implication,” the judge said.
Tonbridge had asserted that an electrical transmission line is a public use, giving the company the right of eminent domain. Three wind farm developers have purchased capacity on the line. Poles started going in the ground in August with the company working around the Salois property.
Bob Williams of Tonbridge said the company was surprised and disappointed with the decision. Tonbridge is considering an appeal, he said.
Voluntary deals with landowners remain the company’s goal, he said. The Salois complaint was the company’s first condemnation action in Montana.
“That said, projects such as this that are in the public interest have to be able to fall back on eminent domain as a last resort,” Williams said. “Even when we have exhausted all other options, it still means that landowners are compensated fairly.”
The MATL project was permitted under the Major Facilities Siting Act and the public need for it was determined during the review process, said Johan van’t Hof, Tonbridge’s CEO.
He argued the judge’s decision “doesn’t square with the reality” of private companies building cable, telephone, transmission and pipelines.
As a result of the decision, Lund, Salois’ attorney, expects other businesses planning transmission lines to seek a “legislative fix,” giving companies the power to condemn land for transmission lines.
NorthWestern Energy, the state’s largest utility, is planning the $1 billion Mountain States Transmission Intertie, which also would ship wind power. Tonbridge and renewable energy developer Gaelectric are jointly planning the “Green Line” between Great Falls and Townsend.
“I hope the Legislature protects the interest of the landowner and the small guy in this process,” Lund said.
The 215-mile transmission line will connect the electricity grids in Montana and Alberta between Great Falls and Lethbridge, Alberta.
Tonbridge still is negotiating easements with landowners along the southern half of the project from Cut Bank to Great Falls, where construction has yet to begin. Lund also represents 20 landowners along that stretch in easement negotiations. Those landowners have been pushing for tweaks in the line as well.
“This obviously puts them in the driver’s seat,” Lund said of the Salois decision.
Salois pushed the company to alter the location of poles planned for his property, outside of the 500-foot approved corridor, because he said the line was planned too close to Blackfeet tepee rings and a wetland.
In October, the Blackfeet Business Council agreed to write a letter in support of Salois’ efforts. The council said the land involved was once Blackfeet land and told Salois that he had the support of the nine-member council “in your efforts to fend off this incursion by a multinational company.”
“For now, things are protected,” Larry Salois said.
Tonbridge initiated settlement discussions with Salois a few weeks ago and hopes to reach an agreement before Christmas, van’t Hof said.