New fight brewing over eminent domain

2013-01-25T19:30:00Z 2013-01-25T22:12:37Z New fight brewing over eminent domainBy MIKE DENNISON Gazette State Bureau The Billings Gazette
January 25, 2013 7:30 pm  • 

HELENA — The right of power companies to condemn private property for a transmission line is headed for another battle at the Montana Legislature, as a Republican state senator wants to repeal a two-year-old law defining that right.

Sen. Debby Barrett of Dillon said Friday the law ignored the rights of property owners and tilted the legal landscape too much in favor of power-line developers.

“I’m not anti-business; I’m not anti-energy,” Barrett said. “But it should be done in the right way. There are many of us that believe (the 2011 law) was not the way to do business in Montana.”

Barrett’s Senate Bill 180, which repeals the law, isn’t the only legislation in the works on the issue of eminent domain, which is the legal term for the power to condemn private property for a public use such as a power line, pipeline or highway.

Two other Republicans are preparing bills designed to help landowners negotiate with utilities that want to cross their land to build a power line.

“Right now, the leverage is on the side of the condemnor,” said Rep. Kelly Flynn, a Townsend rancher who will be sponsoring some of the bills. “I want to see a more balanced process.”

Barrett’s SB180 will be heard before a Senate committee early next month.

A lobbyist for NorthWestern Energy, the state’s largest electric utility, said it will oppose Barrett’s bill.

“It’s a disaster for people who expect to have electric services in Montana,” said John Fitzpatrick, NorthWestern's executive director for government affairs. “What we have here is a piece of legislation where Montana would be the only state in the union where a public utility would not be able to use eminent domain.”

Fitzpatrick said the condemnation power of eminent domain is rarely used by NorthWestern or other utilities when stringing a power line, but it’s a necessary tool if a landowner won’t agree to a reasonable price for crossing his or her land.

“What eminent domain is about is protecting society,” he said. “You still run into these situations where someone just wants to say no, or someone wants to shake you down.”

The debate over eminent domain reprises the legislative battle from 2011, when the Legislature went down to its last week before narrowly approving a law stating that utilities and power-line developers can use eminent domain to condemn private property along an approved route.

Utilities asked for the law in the wake of a District Court decision that said they had to expressly show that any line was a public use before using eminent domain. They argued the decision improperly altered longstanding precedent that gave utilities such power, and that the law merely restored what had been understood.

When using eminent domain, utilities go to court to cross someone’s land, but still must negotiate a price they’ll pay the landowner for stringing a line through his or her land.

Barrett said the 2011 law was enacted primarily to help the Montana-Alberta Tie Line in north-central Montana, a merchant power line, and now that MATL is largely finished, the law shouldn’t be needed.

NorthWestern Energy has proposed another big power line in southwestern Montana, and Barrett said landowners in her district, where the line would pass, believe the law erodes their rights.

Fitzpatrick said that line has been all but shelved, because of shrinking demand for power, but that eminent domain is still needed for routine stringing of power lines to new developments.

Flynn and Sen. Chas Vincent, R-Libby, said they’re developing bills that will reform the eminent-domain procedure, with an eye toward helping landowners get a fair and timely price for using their land.

“We need to clear some things up and allow for some flexibility that would help the landowners and the applicants as well,” Vincent said Friday.

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