The disputes between the Montana Alberta Tie Ltd. power line developer and the landowners in the line’s right-of-way entered a new phase on Jan. 11, when 6th District Court Judge William Nels Swandal determined that a 2011 state law granting retroactive eminent domain authority to entities that obtain a certain state permit is constitutional.
Five landowners of an original dozen who filed the lawsuit contesting the validity of House Bill 198 in the 9th Judicial District Court now face condemnation proceedings for easements in the coming days by MATL L.L.P. unless their attorney, Hertha Lund of Bozeman, appeals Swandel’s ruling to the Montana Supreme Court.
The condemnation proceedings against at least two dozen additional landowners in Teton, Pondera and Cascade counties who have not negotiated right-of-way easements would also move forward before Swandal in the case of Teton and Pondera county property owners and before District Court Judge Thomas McKittrick in Great Falls in the case of the Cascade County landowners.
In the Jan. 11 order’s introductory remarks, Swandal said the challenging party bore the heavy burden of proving a law to be unconstitutional beyond a reasonable doubt. He said the court had a duty to interpret the statute in a manner that upholds a constitutional interpretation.
The court agreed with the defendant MATL that the law itself did not deprive the plaintiffs of their property without a meaningful opportunity to be heard. Swandal said the law merely codifies eminent domain authority into the Major Facility Siting Act. It does not in and of itself have any impact on the plaintiffs’ property rights, he said, adding that the landowners do not have a protectable right to be immune from condemnation for a public purpose. Rather, their protectable right is to just compensation for any property taken.
Lund argued unsuccessfully that granting MATL eminent domain authority after the state’s public process to approve its permit to build the line was wrong on several counts.
Ninth District Court Judge Laurie McKinnon ruled in December 2010 that MATL, now a subsidiary of the oil pipeline giant, Enbridge of Calgary, Alta., did not have eminent domain authority to build the private merchant line destined to transmit wind energy between Great Falls and Lethbridge, Alta. The Legislature reacted by passing HB 198. After Lund filed the HB 198 lawsuit, MATL requested a change in judges. McKinnon invited Swandal to handle the subsequent lawsuits and he accepted.
Swandal said the Legislature may enact legislation calculated to correct a court decision which it believes is errant and it may make the application retroactive. He said HB 198 did not change any of the “substantive decision-making criteria” under MFSA and so there is no basis to conclude that the ultimate result would have been any different with or without HB 198.
Further, he said the state Department of Environmental Quality that administers MFSA, an environmental review of large projects, provided adequate notice to landowners regarding the line through public hearings and published notice of hearings. He said each landowner was mailed a copy of the environmental impact statements.
He noted that his order does not resolve issues that will be addressed in condemnation proceedings, such as whether the proposed 230-kilovolt transmission line meets the state’s criteria in the eminent domain statute for “public use” and “necessity.” However, similar words are used in the MFSA process, and MATL has already filed a brief stating that receiving a MFSA permit, labeled a certificate of compliance, meets the thresholds.
Also in the order, Swandal said that the proposed MATL line falls within the state’s broad definition of a public utility, even though the Public Service Commission does not regulate it. Instead, the Federal Energy Regulatory Commission is its governing agency.
Swandal set a deadline of Feb. 3 for Lund to file her brief on the issues of public use and necessity, and he ordered MATL and the Attorney General’s office, which was also a defendant in the HB 198 lawsuit, to file their responses by Feb. 24. The court will hear oral arguments on March 2 at 1:30 p.m. in the Teton County courtroom.
Swandal’s ruling clears the way for the Cascade County condemnations to also move forward. Mediation memos are due Jan. 14 to the mediator with mediation set for Jan. 24-25. The preliminary condemnation hearing is scheduled for April 12-13.
Although Swandal stated that the MFSA process met the requirements for due process and public participation regarding the landowners in the right-of-way, his remarks indicated that the process could be improved. He said, “While it may be good policy for the Legislature to amend HB 198 to allow for greater notice to landowners, that is the Legislature’s prerogative and not the court’s.”
He continued, “At this time no plaintiffs’ land or property has been taken. The plaintiffs will receive full due process and a chance to be heard during condemnation proceedings. The MFSA approval also requires MATL to cooperate with landowners in placement of the line and access roads. If MATL is unreasonable or refuses to cooperate, mandamus and other actions are available to the plaintiffs. It is during the condemnation proceedings that landowners can object to MATLÕs terms and conduct and avail themselves of the right to contest the offers made and the suggested placement of the line and access roads. HB198 as passed does not adversely affect the rights plaintiffs are guaranteed under the Montana constitution.”
The remedies that Swandal predicts may not be that certain. Lund stated last month that she is concerned that MFSA is a “super statute” “on steroids,” that preempts the eminent domain statute’s provisions.
The eminent domain statute provides that the public use must be located in the manner that will be most compatible with the greatest public good and the least private injury, and the location is subject to the provisions of MCA 70-30-206. The MFSA process (before the law was changed in 2011 to expand the corridor to a mile) created a state-approved 500-foot corridor. At least one landowner wants the line moved more than that.
MATL representative Darryl James’s remarks would seem to confirm Lund’s concern. In an e-mail to the Acantha he said, ÒMATL has continuously left the door open for negotiations with landowners. Several landowners involved in the condemnation suits have since settled with MATL, and there are ongoing discussions with several more.”
He continued, “Both before and since the meeting we held in Dutton several months ago, the MATL land team has met with individual landowners to discuss both alignment and structure location within the approved corridor. Structure locations and structure types have been modified in direct response to individual landowner requests so long as those requests did not impose further impact on neighboring parcels not in their ownership, and so long as they fell within the approved corridor.”
He noted that DEQ approved several minor shifts in alignment outside the corridor at landowners’ requests, but he stated that alignments “far outside” the corridor have “significant” impacts.
After reading Swandal’s order, Power area resident Bruce Maurer, the secretary for Maurer Farms Inc., one of the plaintiffs in the HB 198 lawsuit, said he still believes that landowners are not given enough consideration or notice in MFSA process.
He said MATL agents came out to his place in 2005 at which time he agreed to an alignment. MATL then came out in 2006 and asked for and received another alignment. Then, he said, in 2009, “Something happened. They started telling you what they want to do Ð a total difference of approach. I would have liked to see them talk to the people about where poles would go, and come up with the best plan.”
He said, “MATL would not have had near the trouble they are having now.”