A Canadian company building a high voltage for-profit power line through Teton County has fired the first salvo to reverse a judge’s order stating that the private company has no eminent domain authority.
MATL L.L.P. filed an appeal in the Montana Supreme Court on March 7 of 9th Judicial District Judge Laurie McKinnon’s order last December dismissing the company’s condemnation lawsuit against Larry Salois, guardian of his disabled mother who owns property in Glacier County.
MATL L.L.P., standing for “Montana Alberta Tie Ltd.,” is a Montana subsidiary of Toronto, Ont.,-based Tonbridge Power Inc. that is building the $225 million, 213-mile-long high voltage, merchant transmission line from Great Falls to Lethbridge, Alta., through Teton, Pondera and Glacier counties.
The power line first broke ground in Glacier County to connect with proposed wind energy developments, but MATL is still negotiating portions of the right-of-way south of Conrad. According to MATL, Salois is the only person, among 70 people along the northern portion near Cut Bank, who could not reach a right-of-way agreement.
McKinnon’s order last December has effectively stopped any new condemnation filings that MATL might be contemplating for its statesanctioned, permitted right-of-way.
The project has raised a firestorm in the Montana Legislature where a flurry of bills aim either to strengthen private property rights or to settle once and for all that public utilities and certain other parties have eminent domain authority. The latter parties would be entities that receive a certificate of compliance from the Department of Environmental Quality under the Major Facility Siting Act.
As of Monday, none of the bills had made it to the governor’s desk yet. House Bill 198, in particular, would retroactively give MATL the right of eminent domain. It received the DEQ certificate on Oct. 22, 2008.
The location of the line is now set pursuant to the MFSA process and cannot be moved without a permit amendment. One amendment is already under appeal by Salois, and several other landowners, to DEQ’s Board of Environmental Review, with hearings set for March 29 and April 12.
In its Supreme Court appeal, MATL asks the court to reverse the lower court’s ruling and remand the condemnation suit back to the district court on an expedited basis.
The matter is urgent, MATL says, because of certain construction deadlines, and because more than $600 million is being invested in wind farms with the anticipation that these farms will be connected to the line no later than the end of 2012. In addition, MATL received a $161 million stimulus loan from the Western Area Power Administration stipulating that the project must achieve substantial completion by April 30, 2012.
If granted, the expedited motion would hold Salois to 30 days to file its response brief, barring him from being granted a 30-day extension after that. Salois, through his attorney, Hertha Lund of Bozeman, opposes the motion because, she said, it limits his procedural rights. Lund added that “MATL is placing facts before the court that are not part of the record on appeal and have no bearing on any resolution of the narrow issue: whether the Montana Legislature has delegated condemnation authority to MATL, a private merchant transmission line.”
As of Monday, Lund had not yet filed the response brief.
The Supreme Court granted Jefferson County on March 16 a request to appear as an “amicus” or a party that could provide additional information for the court. The county, which has started it own fight with NorthWestern Energy over the proposed Mountain States Transmission Tie through that county, favors the district court’s original ruling. It stated that by ruling against MATL the district court upheld the requirement for a legislative grant before a private corporation may condemn property in the limited context of a plan to construct a merchant transmission line.
On March 15 NorthWestern Energy also filed an amicus, but to support MATL’s position that the district court erred. The company attorney said the decision “casts significant doubt on the ability of a public utility, like NorthWestern, to exercise eminent domain to acquire easements for such facilities. … This case is significant. It impacts not only the original parties, but it also impacts all public utilities in Montana, who up until the district court’s decision have relied on their understanding that they had eminent domain authority.”
NorthWestern stated that electric lines like MATL’s proposed line are listed as public uses in state law for which eminent domain is authorized.
NorthWestern stated that the Legislature, when it revamped corporation laws in 1991 never intended to eliminate the right corporations had enjoyed for many years to exercise eminent domain. Added to that, the authority to condemn is found in the listing of public uses, including telephone or electrical energy lines, NorthWestern said.
MATL agreed, stating that the state’s eminent domain statute specifies various public uses that are “obviously intended to be exercised by private persons and entities.” MATL says the statute provides an “express delegation of authority.”
The district court held that the eminent domain statute, Section 70-30-101, MCA, which provides for “public uses,” does not, itself, delegate eminent domain authority to a private entity. The court held that there must be a separate statutory delegation, and it will be strictly construed. The court stated that MATL was not able to cite a single judicial opinion that it may pursue eminent domain proceedings by virtue of its establishing an enumerated use set forth in the law.
MATL said the law setting forth the procedures is evidence enough because it states that the complaint must contain the plaintiff by “name of the corporation, association, commission, or person in charge of the public use for which the property is sought.”
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