Eminent Domain Battle Heats Up in Montana

By Beacon Staff

HELENA – The battle over eminent domain remains mired in a dispute between landowners and industry groups, with utilities arguing they need new laws to make sure they have the authority while ranching groups and others say they need more power in order to get fair value during the condemnation negotiations.

Industry interests led by those building electrical transmission lines are seeking a proposal, known as House Bill 198, currently languishing in a Senate committee that would clarify that their projects qualify to have private land condemned. They argue a court order last year threatens to scuttle the Montana Alberta Tie Line unless the bill passes.

Property owners led by ranchers are suspicious of that bill, and are seeking another one that would give landowners more power in eminent domain negotiations. It is opposed by the utilities and companies such as TransCanada, which is trying to build an oil pipeline through the state.

Landowners re-crafted their House Bill 240 and brought it to a new House committee Wednesday — trying to get support for their plan. It faces a key vote next week in the House Taxation Committee.

Rep. Kelly Flynn, a Townsend Republican carrying the bill, said many in the GOP majority have only agreed to support the industry eminent domain bill if they are able to get new protections of their own. The landowners argue they need to get more money for their land when it is condemned as “just compensation” required by the Montana Constitution.

“It encourages folks to come together and give landowners just compensation,” Flynn said.

The House approved that utility bill last month but only after many Republicans begrudgingly went along with the plan with assurances that Flynn’s proposal would also be coming forward. The Senate has been sitting on that pro-utility bill for weeks while they watch lengthy negotiations over Flynn’s pro-landowner bill.

The issue was brought into the spotlight when backers of the Mountain States Transmission Intertie line asked the Legislature and Gov. Brian Schweitzer’s administration for help after a court ruled late last year that such utility lines don’t have eminent domain authority, as most previously believed. NorthWestern Energy, backing a separate $1 billion MATL in southwestern Montana, say it also needs assurances its projects can use eminent domain.

Landowners argue the powers granted in House Bill 198 could be abused to steamroll landowners who get in the way — unless they get more sway in negotiations as outlined in House Bill 240.

Clint McRae, who ranches south of Colstrip, said he does not currently have a way to force a good deal with backers of a proposed railroad that would haul coal though his land. He feels there is nothing he can do to make sure he gets just compensation because the company can simply condemn his land if he doesn’t take its offer.

“Eminent domain should be used as a last resort — not as a threat or a club,” said McRae. “The bottom line is they were not willing to negotiate. It was an ultimatum, not a negotiation.”

Utilities argued Flynn’s bill goes too far by using a tax incentive as a method to entice builders to reach a deal suitable to each landowner. But they held out hope a deal on the package of eminent domain bills can be reached.

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