By Rep. Mike Cuffe, Rep. Jerry Bennett and Sen. Chas Vincent
House Bill 198, involving eminent domain issues, meets constitutional standards for both U.S. and Montana Constitutions. Our thoughts are outlined below.
After considerable consideration, each of us have or will vote yes on House Bill 198, commonly referred to as the Eminent Domain Bill. This bill addresses one particular issue and doesn’t expand or change eminent domain in any way other than to write down how it traditionally has been applied in Montana.
House Bill 198 was developed to address a specific issue in northern Montana which developed when a district court ruling overturned 100 years of legal precedent regarding eminent domain. Until now, the construction of an electric power line has been widely considered a public use for which a right of way could be acquired through eminent domain. The Legislature’s declaration of public use determines whether eminent domain is or is not appropriate. But the court said the Legislature hadn’t specified whether the nature of that public use changes based on the character of the person or company building the power line. In this case, a Canadian corporation more than 60 percent owned by Americans was building a power line which included a collector line feed from Montana wind generators as well as electricity generated in Canada. The company had successfully gone through the Montana DEQ permitting process and had invested millions of dollars into the project. This process is both very extensive and very expensive, and the corporation is licensed to do business in Montana.
We did review both Montana and U.S. Constitutions prior to supporting H.B. 198. We agree that this bill did fit constitutionally with both. Basically, Eminent Domain, the taking or use of private property for public use, can be exercised as long as just compensation is provided.
–Per U.S. Constitution: “…nor shall private property be taken for public use, without just compensation.”
–Per Montana Constitution: “Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having first been made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails.”
House Bill 198 puts into statute what has been practiced since the early days of Montana. We believe this was a good and necessary vote for Montana. Over the years, Eminent Domain has been exercised for roads, ditches, logging flumes, logging railroads, dams, mining operations, pipelines, other railroads power lines, and highways. It has been exercised by governments and private corporations from both Montana and other places.
House Bill 198 was narrowly written to reaffirm the longstanding legal tenet that a certified entity providing electrical transmission has the right of eminent domain in the event a negotiated agreement cannot be reached. Passage of H.B. 198 clarifies the status quo prior to the district court’s ruling in November, 2010. This bill is supported by Northwestern Energy, MDU, and MATL and would apply retroactively to Major Facilities Siting Act (MFSA) certificates issued since September, 2008.
House Bill 198 clarifies that public utilities regulated by the Montana Power Service Commission have the right to use eminent domain, if necessary, in the construction of a power line. It also clarifies that a project certified under MFSA by Montana Department of Environmental Quality has the right to use eminent domain.
None of the provisions in this bill expand eminent domain, nor does it empower anyone other than those already set out by the Montana Legislature. Any entity seeking to build a transmission line for renewable or traditional energy transmission would still have to comply with the MFSA certification process. Again, this is both expensive and involves extensive work. Due process and just compensation aren’t addressed in House Bill 198, they remain the same as outlined in the Constitution. As amended, this bill doesn’t apply to a public utility’s affiliates and subsidiaries. Despite popular belief, H.B. 198 doesn’t specifically address MISTI transmission line because that project has yet to receive MFSA certification.
DUE PROCESS and MFSA Modifications
In addition, there are several bills currently in the works to improve the process of siting a power line to allow more flexibility for landowners and project developers. They will also ensure that landowner considerations are put in the front end of the process of negotiations, rather than at the end.
All three of us have been involved with all of the legislation proposed because we believe that most of the problems surrounding the MATL project could have easily been avoided and should not be revisited in the future.
Eminent domain is and should always be used as a last resort, but it is a necessity for many public purposed. If we are to be a state that responsibly develops its natural resources we need the infrastructure in place to be able to do so. We also need to strike a delicate balance with private property rights, as they are equally important to a free and prosperous state. When the two collide we need to ensure that there is a fair and equitable process to produce livable outcomes for everyone involved.