Written by KARL PUCKETT, www.greatfallstribune.com 11 January 2012
A district judge has upheld an eminent domain law passed by the 2011 Legislature, overruling objections from landowners who argued it was special legislation granting a Canadian company condemnation authority for a transmission line between Great Falls and Lethbridge, Alberta.
Landowners in Pondera, Teton and Cascade counties, where Montana Alberta Tie Line LLP is seeking easements, are challenging the constitutionality of the law.
MATL is a subsidiary of Calgary-based Enbridge.
In a decision issued Wednesday, District Judge Nels Swandal of the 6th Judicial District in Livingston, who was assigned the Teton County case, ruled that House Bill 198 wasn’t illegal special legislation as long as it doesn’t exclude other entities from exercising the same power granted in the law.
“The point is that no one who should be included has been excluded from the Legislative action,” Swandal said in the order.
Jim Goetz, a Bozeman attorney for MATL, said the ruling is the first step in the company negotiating easements needed to complete the 214-mile power line.
The line would serve wind farms under development in northcentral Montana and connect the electricity grids of Alberta and Montana at Great Falls and Lethbridge.
“The client is obviously pleased with the decision and wants to assure everyone involved that it will work carefully with the landowners to try to get these matters negotiated in a way that’s satisfactory to everybody,” Goetz said.
Swandal’s ruling says MATL has the right to use eminent domain, but the judge still must decide whether the power line is a “necessity” and a “public use.” The court will hear oral arguments on those questions March 2 in Teton County.
Maurer Farms Inc., Kyle Burgmaier, Steven Dahlman, John Goodmundson and Robert Stephens brought the lawsuit against the state and MATL in Teton district court.
Swandal’s ruling also affects other condemnation cases pending in Cascade and Pondera counties.
“I still don’t think it’s appropriate for the Legislature to make a law proactively for one individual, corporation, whatever you want to call these guys,” Bruce Maurer said Wednesday.
About 30 landowners own property between the Marias River and Great Falls. Many of them have refused to grant the company right of way for the project, prompting a showdown over condemnation.
The new law says public utilities or entities that have received a Major Facilities Siting Act Permit after Sept. 30, 2008, can exercise eminent domain. MATL received its permit Oct. 22 of that year to build the line.
The law was passed after a Glacier County judge ruled in 2008 that MATL didn’t have condemnation authority.
Landowners questioned a private, for-profit company being given eminent domain authority. Swandal said MATL falls within a very broad definition of public utility under Montana law. That definition includes any person or entity that operates any equipment for the production or delivery of power in any form.
The landowners also argued that they were denied due process because HB198 delegates the authority to exercise eminent domain to entities that have received a Major Facilities Siting Act permit. Since MATL had the permit, the landowners said, they were deprived of a meaningful opportunity to challenge the authority.
The judge ruled the law authorizes MATL to initiate condemnation proceedings but the cases still need to be argued in court.
“Before any property can be condemned, plaintiffs will have a meaningful opportunity to be heard during the condemnation proceedings,” Swandal wrote.
URL to article: https://www.wind-watch.org/news/2012/01/12/judge-sides-with-matl-in-condemnation/