October 20, 2010
Montana

MATL eminent domain claim for powerline route heard in Cut Bank court

By KIMBALL BENNION, Tribune Staff Writer, Great Falls Tribune, www.greatfallstribune.com 19 October 2010

CUT BANK – A company’s attempt to condemn land for a power line near Cut Bank was heard in court Monday.

District Judge Laurie McKinnon did not reach an immediate decision after hearing preliminary arguments on whether Tonbridge Power Inc. has the right to condemn a portion of land belonging to Shirley Salois so it can build a part of its Montana Alberta Tie Line there under the authority of eminent domain.

The 215-mile MATL project would serve wind farms between Lethbridge and Great Falls.

Although Tonbridge already has begun construction on the stretch north of Cut Bank, Salois’ son, Larry, and other landowners have argued that a foreign private corporation has no right to invoke eminent domain, a right that Salois’ lawyer, Hertha Lund, said belongs to the state.

Neither Shirley nor her son, Larry Salois, were present at the hearing because of a family emergency, Lund said.

In her argument to McKinnon, Lund said the central question is: “Can MATL step into the shoes of the state and condemn private property?”

Lund cited several previous condemnation complaints from private companies in which they had to prove a public necessity before they could condemn land. She argued that Tonbridge failed to offer specific proof.

Mark Stermitz, the lawyer representing Tonbridge, argued that the MATL project received a permit from the Montana Department of Environmental Quality after demonstrating public necessity five years ago and that Larry Salois failed to appeal in time to that initial condemnation after receiving the permit, making Salois’ argument moot.

“It is irrelevant to these proceedings,” Stermitz said. “He did not and he cannot appeal the certification that applies to this situation.”

Lund later argued that Salois did appeal in time to an amendment to the DEQ permit that gave MATL permission to build within 50 feet – but not on – wetlands. Lund said her client appealed that amendment because there are wetlands on his mother’s property near Cut Bank.

Stermitz also argued that as long as MATL followed the law, they had a right to use eminent domain for a public-use project.

McKinnon replied by saying that Montana’s statutes state that eminent domain is a power of the state, and that it remains so even in cases involving private citizens or companies.

“In every case that I have reviewed, there’s always some connection made to the state,” she said.

Both sides in the case heavily cited a 1987 Montana Supreme Court case, Montana Power Co. v. Fondren, which held that a court could not review a condemnation order if the landowner did not appeal the order in time. It also held that the court had no jurisdiction to rule on whether there was enough public necessity to claim eminent domain since that necessity already had been established by the Board of Natural Resources – an argument similar to that of Tonbridge, which claimed that the DEQ already had established public necessity in issuing its permit.

Lund said that under the Fondren case, the state high court ruled that, once a specific route of transmission for a power line has been set, no court has the jurisdiction to hear challenges on the route’s location. But Lund argued that the specificity of MATL’s route wasn’t there, and that her client had a right to challenge its location.

McKinnon is expected to rule in the next week or so. The preliminary ruling will be issued before the case goes to trial, which probably will start at the beginning of next year.