Eminent Domain in Montana – The Montana House Fails Landowners

Now that the Montana legislative session is over, here is my tally is on what landowners got out of the session regarding private property rights and specifically those rights related to merchant transmission lines:

–          HB 417: this bill requires that a condemnor provide landowners a final written offer prior to initiating a condemnation complaint. This is helpful to landowners because condemnors often manipulate offers before a final award for damages and this can adversely affect the determination of the prevailing party for reimbursed attorney fees. This bill passed the Legislature on 4/24 and was signed by the Governor on 5/1.

–          HB 45: this bill requires that the current Environmental Quality Council handbook on eminent domain be included in the condemnation complaint. This booklet may provide landowners with some information relative to their rights under Montana law. This bill was signed into law by the Governor on March 28.

All in all, not much for landowners came out of this past session, and nothing was really gained for landowners regarding private property rights in relation to merchant transmission lines. SB 180, a bill that would have repealed the power of eminent domain granted to private, for-profit corporations via the Major Facility Siting Act (MFSA), made it through the Senate and then was tabled in the House Federal Relations, Energy & Telecommunications Committee. Leesa Zalesky, of Western Ag Reporter, wrote a good summary of what happened to SB 180 during the session, and I’ve included it below. There are a couple of points in Leesa’s article that are slightly in error, such as HB 198 was more related to a patch for MATL (Montana-Alberta Tie Line) than explicitly written for MSTI, and the extent of an HB 198 repeal via SB 180, but at least there’s information about what happened to SB 180 out in the media. It is also important to note that SB 180 was traded for HB 417 by some House legislators/lobbyists, and that became a major obstacle in trying to get SB 180 through the House.

Here’s Leesa’s article:

Montana House Fails Landowners

By Leesa Zalesky – published in Western Ag Reporter, May 2, 2013

When the Montana legislative session ended last week, Senate Bill 180 — sponsored by Senator Debby Barrett, a Republican from Dillon, MT — died for lack of a champion in the Montana House of Representatives. SB 180 would’ve restored landowner protections and private property rights by repealing the expansion of eminent domain powers granted through last year’s passage of HB198.

Eminent domain is the power to take private property necessary for public use, a power typically held by the individual states and the federal government. Readers will remember that, during its previous session, the Montana Legislature passed the highly contentious HB 198, which delegated the power of eminent domain to an entity or a person issued a permit by the Montana Department of Environmental Quality (MDEQ). The controversy over the bill surrounded Northwest Energy’s planned Mountain States Transmission Intertie (MSTI), a 500 kV electric transmission line that would extend from Townsend, Montana, through the Whitehall and Butte areas south along the Interstate 15 corridor to a substation in south-central Idaho, a route that involves a great deal of privately owned land.

The passage of HB198 left Montana landowners vulnerable to private property takings whether the land usage would be related to the public good or private use. SB180 would have protected landowners’ rights and would have ensured they received procedural and constitutional protections for private property. SB180 would NOT, as some opponents claimed, have brought development in Montana to a screeching halt, and utility companies like NWE and rural electric cooperatives would have been able to construct distribution power lines. It would have, however, protected private property rights in the process.

SB180 passed through the Montana Senate on February 27 in a 28:22 vote. But when it arrived in the House, the bill was assigned to the House Federal Relations, Energy & Telecommunications Committee (FRET) on March 27, essentially a political strategy to kill the bill. Knowing the FRET Committee would be unfriendly to the bill, SB180’s original sponsor asked House leadership to route the bill through the House Natural Resources Committee, but the request was rejected, and sure enough, the bill was promptly tabled by the FRET Committee. Proponents of the bill were unsuccessful at blasting the bill out of the FRET committee (60 votes are needed for a successful blast), and the bill simply died when the legislature adjourned. Rob Cook — a Republican from Conrad, Montana, and chair of the legislature’s Joint Appropriations Subcommittee on Long-Range Planning — was one of the most vocal opponents of the bill. In fact, supporters of the bill found not one single champion on the Republican side of the House, where they expected to find their strongest support.

Deb Hanneman, PhD, is a landowner and geologist who lives near Whitehall, Montana. Hanneman is a member of Concerned Citizens Montana, a group that fought HB198 last year and supported SB180 during the latest legislative session. Hanneman, who worked the Montana legislature seeking support for SB180, summed it up: “A lobbyist that has been in Helena for decades pulled me aside during the last part of this session and told me,”You need to understand that Anaconda Company, then Montana Power and now Northwestern Energy, have owned the Montana legislature since day one. They found it easier to control 150 people in a confined space than to deal with people spread all over the state. You’re just beating your head against the wall trying to get your vote through.”