MATL facing issues on several fronts 

The controversial MATL transmission line continues to generate news, running the gambit from table talk to a Montana Supreme Court decision.

The issues stem mostly from placement of the 500-foot transmission line corridor, a process that involved the state, the public and the company through the Major Facilities Siting Act process, but the project’s complexity has created an expanded list of concerns.

Chris Stephens, who has advocated for landowner rights since the MATL project was started, and whose brother, Robert, is a defendant in one of the condemnation petitions, said the MATL project is the “perfect storm of what can go wrong with an ill-planned project.”

“This is what can happen to merchant power lines,” he said, explaining that little recourse exists when one gives eminent domain authority to a company that is at the whim of the stock market and that could go bankrupt.

He said two MATL officials were given “golden parachutes” and then the company announced that it needed $25 million before it could complete the MATL transmission line.

“The only promise they kept was the promise to condemn us,” Chris Stephens said.

CONTRACTOR DISPUTE

MATL’s contractor, Rocky Mountain Contractors of Helena, stopped work and filed a construction lien on May 24 in the Glacier County Clerk and Recorder’s office for three unpaid invoices totaling $5,867,869, for work on the Marias substation.

According to a June 28 Tonbridge slide presentation available on its Web site, “After exiting Alberta with their work incomplete our contractor stopped work, having issued over 70 change requests. … To get the demobilization, remobilization, land and substation work re-started will likely involve a new contractor in Alberta, resolution of numerous change requests and the coverage of MATL and TBZ overhead costs.”

MATL representative Darryl James said in an e-mail on July 11, “MATL continues to make progress toward resumption of construction in August or September. Regarding the RMC issue, contract amendments on a project of this kind are not unusual and occasionally lead to disagreements over work and payment. RMC and MATL are currently in such a situation, but we are confident it will be settled to everyone’s satisfaction.”

SUBSTITUTION

On June 15, MATL filed for a substitution of judges in the Salois family land condemnation case in Glacier County that was recently remanded to district court by the Montana Supreme Court, based on the enactment of House Bill 198 that gave MATL eminent domain authority retroactively.

MATL also asked for a substitution in a complaint filed in the district courts in Teton and Pondera counties by 11 landowners arguing that House Bill 198 is unconstitutional.

Ninth Judicial District Judge Laurie McKinnon invited, and 6th District Judge William Nels Swandel of Livingston agreed on June 29 to his substitution as judge in the Salois case, the HB 198 case, and in a related case, MATL’s countersuit for condemnation of the 11 plaintiffs in the HB 198 case. Swandel indicated that he would wait 30 days before looking over the files because MATL may file for another substitution.

On July 11, James said, “MATL is pleased that Judge Swandal has agreed to hear these cases and assumes that he will be hearing all of the cases in the 9th Judicial District.”

EMINENT DOMAIN

In the meantime, Hertha Lund of Bozeman, the attorney for Salois and the 11 plaintiffs in the HB 198 case, filed a motion to amend her answer in the Salois case to include challenges to HB 198. McKinnon has not ruled on the motion.

Lund also filed a brief asking the court to dismiss MATL’s motion to dismiss the HB 198 validity case. She said the landowners dispute that MATL’s transmission line falls within even a broad interpretation of public use.

“MATL’s primary purpose is to financially benefit its shareholders,” she said.

MATL argued that even if it were the case that the enactment of HB 198 is “directed” at the MATL v. Salois condemnation case, there is no constitutional problem as long as existing law is modified.

COUNTERSUITS

Lund has also filed a brief to dismiss MATL’s countersuits (condemnations against the 11 plaintiffs,) arguing that MATL did not comply with the eminent-domain-specific provisions, and should be required to re-file its condemnation actions separately. She said the court should determine the constitutionality of granting MATL condemnation authority before proceeding with the condemnation actions.

MATL stated in its pending motion to dismiss that if the landowners have quarrels with the location of the corridor or with other aspects of MATL’s line, they had the full opportunity to raise those in the Major Facilities Siting Act process. MATL argued, “In the present case, MFSA provided extensive opportunity for plaintiffs to participate in the process.”

However, on June 29 MATL filed an amendment to its certificate to move the line’s location on the Salois land, even as the condemnation suit remains in court.

AMENDMENTS

MATL has applied to the state Department of Environmental Quality for three amendments as of July 15 to its certificate noting that changes are necessary. Several landowners who appealed an earlier DEQ decision before the Board of Environmental Review on the first amendment regarding wetlands received news on July 12 that their arguments opposing the decision are valid as to “being material issues of fact to be determined as well as unresolved issues of law.” The order from DEQ Hearing Officer Katherine Orr means that the appeal remains a cloud on MATL’s efforts to construct the line in Montana.

A more recent second application for an amendment regarding changing two locations, one near Valier and one near Power, are under review.

MFSA Program Coordinator Tom Ring said on July 15 that DEQ received two adverse comments on the amendment to relocate the line on the Swanson and Laubach tracts. Ring said MATL asked DEQ to delay its decision on granting or denying the second amendment. “We are trying to work to satisfy everyone’s concerns,” he said.

In a surprise move, MATL has filed a third amendment application to relocate the line on the Salois property. If granted, the condemnation case against the family could be dismissed.

DEQ has posted all amendments and their environmental assessments on its Web site, deq.mt.gov/MFS/MATL.mcpx. The deadline for public comment on the Salois amendment is July 20.

WRIT OF SUPERVISION

On June 28, the Montana Supreme Court denied MATL’s request for a writ of supervisory control over the 9th Judicial District Court, Teton/Pondera counties, in relation to the HB 198 validity case. Supervisory control is an “extraordinary remedy that is sometimes justified,” the court stated, but in this case, “We are not convinced that this case involves purely legal questions. For example, the plaintiffs claim their due process issue raised in the district court involves questions of facts about when each plaintiff was given notice of the planned power line’s placement. Granting supervisory control without allowing a full development of the facts and the legal arguments on this issue would be inadvisable.”

The court denied the petition because it considered it premature, the district court having not ruled in the cases.

James commented, “While MATL would have liked the court to accept jurisdiction, we understand the reasons why it didn’t. MATL hopes to resolve these cases in the district court and not have to approach the Supreme Court again for any further relief.”

With the legal battles unresolved, MATL announced on June 28 that it expects to obtain the balance of the $25 million in cash it needs by fall, that construction should resume in August, and that it expects to complete the line into Alberta by December so as to preserve NaturEner’s ability and commitment to build its Rim Rock wind farm near Ethridge. In addition MATL expects to obtain all land access in Montana by Dec. 31 and to complete the full project by July 1, 2012.

If Tonbridge is unable to secure all land easement rights by Nov. 1, Tonbridge and MATL may be subject to the default provisions under the $161 million construction loan that the companies received from the Western Area Power Administration.