The lawyers for the trouble-plagued Montana Alberta Tie Ltd. transmission line will present their arguments at 1:30 p.m. on Dec. 22 that MATL L.L.P. has the authority of eminent domain and that landowners along the right-of-way had ample opportunity to engage in the public review process before the corridor was determined.
The power line is partly built between Great Falls and Lethbridge, Alta.
The hearing will take place in the Livingston courthouse before 6th District Court Judge William Nels Swandal, but it will be broadcast via a one-way videoconference in the Teton County courtroom in Choteau.
Twelve Teton and Pondera county landowners whose property is located in MATLÕs state-approved right-of-way brought a lawsuit on May 20 against the state and MATL asking the district court to declare House Bill 198 unconstitutional. Passed by the 2011 Legislature, the bill extended the power of eminent domain to regulated public utilities outright and to developers such as MATL that received a certificate from the state Department of Environmental Quality that administers the Major Facility Siting Act.
MATL attorney James Goetz, among others, and the landowners’ attorney Hertha Lund, both of Bozeman, have filed 96 briefs and affidavits to date on the case, referred to as Maurer Farms Inc. et al., plaintiffs, v. the State of Montana and MATL L.L.P, defendants.
Goetz then filed counterclaims for condemnation against the landowner/plaintiffs and at least two-dozen additional landowners in Cascade, Teton and Pondera counties. The condemnations are “on hold” until Swandal determines the validity of HB 198. Either side could appeal his decision to the Montana Supreme Court.
MATL contends that HB 198 “clarified” eminent domain authority that energy companies have had for 100 years and was only enacted because 9th District Court Judge Laurie McKinnon wrongly ruled last year that MATL did not have the authority to condemn the Salois property in Glacier County.
The complaint contains numerous landowner affidavits stating that prior to litigation, MATL and DEQ representatives never consulted with them about where to locate access roads or towers on their property. They contend that granting MATL the right to condemn property more than two years after the state approved its permit to build the line violates the plaintiffs’ rights of due process and meaningful participation and is therefore unconstitutional.
The state contends that the environmental impact statement review was sufficient notice for participation and due process.
Meanwhile, work was never restarted on the 230-kilovolt power line this past summer because a dispute arose between MATL and the contractor, Rocky Mountain Contractors Inc. The contractor filed two construction liens on two leased parcels where it had brought project materials, one in Glacier County for $5.8 million and the other in Teton County for $17.2 million. In the interim, MATL L.L.P.Õs parent company, Tonbridge Power Inc., ran out of money and Enbridge Inc., a major Canadian oil transporter in the United States, agreed in October to purchase the company and the MATL project, fund its completion and upgrade the power to serve several wind farms under development.
MATL representative Darryl L. James of Gallatin Public Affairs said in an e-mail last week that Enbridge has retained Renewable Energy Systems Americas, based in Bloomfield, Colo., to conduct an inventory and assessment of the project corridor. “RES is engaged in contract negotiations with Enbridge, and both are aiming towards contract execution and initiating construction in early January,” James said.
RES Americas’ Web site lists 24 projects it has completed in the United States and two in Canada, but the company has undertaken no projects in Alberta or Montana so far. It has built 302 miles of transmission lines for the wind farms listed on its Web site. The MATL project is 215 miles long, including 130 miles in Montana.
The MATL projected is leveraged with two loans, a 2009 construction loan from the Western Area Power Administration of Lakeland, Colo., for $161 million, and a 2007 operating loan from Anchorage Capital Master Offshore III Ltd. of New York, N.Y., for $31 million. The WAPA loan has a due date of April 30, 2012, at which time the construction loan is set to convert to a 30-year term loan, assuming the line is completed. The Anchorage loan has a final payment date of Oct. 3, 2017. Both lenders have the option to grant an extension of time.
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