If the Montana Legislature doesn’t expressly grant authority for a private power-line company like Montana Alberta-Tie Limited to condemn land along the line’s route, then MATL is without such power, an attorney for a Cut Bank-area landowner told the Montana Supreme Court last week.
Hertha Lund, a Bozeman lawyer representing the Salois family against MATL’s lawsuit to condemn a piece of the Salois’ property along the power-line route in northern Montana, said the Legislature has had “ample opportunity” to grant corporations like MATL the power of eminent domain.
Eminent domain is a state-authorized power to condemn private property for “public use,” such as a power line, pipeline or highway.
However, the Legislature hasn’t specifically granted private power-line companies that authority – and therefore, the authority does not exist, she argued in documents filed with the high court April 7.
“Such a delegation (of power) must be express or necessarily implied – not cobbled together,” she wrote. “Here, where MATL is unable to find an express delegation of power … the court must conclude that this extraordinary power has not been delegated.”
“The fundamental right to be protected here is the landowner’s right to possess private property – not the corporation’s right to take it,” she added.
The Salois-MATL case led to introduction at the 2011 Legislature of House Bill 198, which grants eminent domain power to power-line firms like MATL.
Yet with eight working days left at the Legislature, it appears the bill is dead, leaving the Supreme Court to settle the issue.
MATL is building a 215-mile power line from Great Falls to Lethbridge, Alberta, that would help transport power from proposed wind farms in northern Montana.
Construction on the route south of Cut Bank has been delayed by a December state District Court ruling that said MATL doesn’t have the power of eminent domain under Montana law.
MATL appealed that ruling to the Montana Supreme Court.
Lund, who also represents a group of landowners north of Great Falls negotiating with MATL over terms for crossing their property, said current law has a long list of entities that can use eminent domain to condemn property, and that privately owned non-utility lines aren’t one of them.
She also said just because MATL is claiming that its line is a “public use” doesn’t mean it has eminent domain powers.
“The court has never found that a corporation had the power to condemn private land by simply looking at the list of enumerated public uses,” she wrote.
MATL filed its arguments with the Supreme Court March 7, saying the District Court in Cut Bank erred by ruling that power-line companies like MATL need a specific delegation of eminent domain authority in law, and that it doesn’t exist.
Attorney Jim Goetz of Bozeman argued that utilities and other builders of electric transmission lines have always had eminent domain authority, if it can be shown that they’re condemning property for a legally defined “public use.”
The MATL line is clearly a public use under Montana law, he wrote.
“The transmission line at issue in this case obviously confers a public advantage or benefit,” Goetz said. “It will provide Montanans with access to electricity from a clean, renewable source.”
“MATL seeks to use the power of eminent domain for an express public use, as articulated in (law),” he said. “This should be the end of the matter.”
NorthWestern Energy, the state’s largest electric utility, also filed a friend of the court brief on behalf of MATL, arguing that power lines are a public use, to which eminent domain is applicable.
The District Court ruling puts utilities’ eminent domain powers in doubt, NorthWestern said. Without such power, landowners can block an entire project that benefits consumers and customers, wrote the company’s lawyers, John Tabaracci and Robert Erickson.
“If the District Court’s decision is affirmed, public utilities would be left without the ability to exercise eminent domain, jeopardizing the utilities’ ability to provide essential services, and increasing costs to Montana consumers,” they wrote.
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