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Eminent domain logjam still exists; new proposal floated

HELENA – Senate Republicans are floating a new proposal to break the legislative logjam over landowner rights vs. property condemnation powers of transmission line developers – but so far they’re not finding any takers.

A House member who’s been pushing for stronger landowner rights said Tuesday that the proposal has some positive elements but still gives a green light to the Montana Alberta Tie Limited (MATL) power line to condemn property along its north-central Montana route.

“I’m not interested in the Legislature resolving the court suit,” said Rep. Kelly Flynn, R-Townsend, referring to a legal battle blocking MATL’s condemnation power.

“I think that would be best decided by the Montana Supreme Court.”

A spokesman for NorthWestern Energy, the state’s largest electric and gas utility, said the new proposal would essentially kill any new power lines that serve wind power development.

“Since the start of the session, the Republican caucus has indicated that its focus was job creation,” said John Fitzpatrick, director of government affairs for NorthWestern. “And now we have a bill drafted at the request of Republican senators which would kill an entire industry: wind development and the associated transmission it needs to prosper.”

The draft, requested by Senate Majority Leader Jeff Essmann, R-Billings, strengthens landowner rights in any condemnation proceeding and clarifies that MATL and some power line developers can use eminent domain to condemn property to site a power line.

But it also says power lines meant to “collect” power generated by various wind farms cannot use eminent domain to condemn property. Fitzpatrick said that exemption means such lines won’t be built.

Essmann said Tuesday that he’s not sure the draft will be introduced as a bill and that he’s just trying to “break something loose” in this session’s stalled debate over eminent domain.

Eminent domain is the power granted to utilities and others to condemn property for a public purpose, such as siting a power line or pipeline.

Sorting out who gets to exercise such power, and the rights of landowners in the process, have become a key issue facing the 2011 Legislature. Bills addressing the issue are either dead or locked up in committee.

House Bill 198, supported by power line companies, clarifies that public utilities and power-line developers like MATL can use eminent domain to condemn property.

The bill was introduced in response to a 2010 state District Court decision that said MATL, the Canadian-owned power line proposed from Great Falls to Lethbridge, Alberta, is not specifically authorized under state law to use eminent domain to condemn a piece of property along the line’s route near Cut Bank.

That decision, which is delaying construction of the $250 million line expected to serve area wind farms, has been appealed to the Montana Supreme Court.

HB198, however, doesn’t have the votes to get out of the Senate Energy and Telecommunications Committee, where all Democrats and a few Republicans are opposing it.

Sen. Mitch Tropila, D-Great Falls and a committee member, said Tuesday he’d rather have the courts settle the eminent domain question regarding MATL and similar power lines.

“I think putting (that power) into state law might grant legal power in places where we don’t necessarily want it, that skirt the will of the people,” he said. “On this one, it’s a gut feeling.”

Some Republicans also worry that HB198 may trample on property rights.

Senate President Jim Peterson, R-Buffalo, who supports the bill, said it has created a real dilemma for Republicans, who have strong feelings about protecting property rights but also want to develop natural resources such as coal, wind or other resources that produce electricity.

“You’ve heard me say I’m caught in a vise,” he said. “It’s about finding that balance between the use of eminent domain and the responsible development of natural resources that requires pipelines, railroads and power lines.”

Peterson believes the issue should be resolved before the session’s end, which is scheduled in two weeks: “At some point, this body is going to have to make a decision.”

Fitzpatrick agreed, saying HB198 or something like it “has to pass.”

“It will happen in the latter days of the session, when the air gets cleared on a bunch of stuff,” he said. “If you want to have wind power (in Montana), you’ve got to have merchant power lines.”