Landowners Press Court to Hear Eminent Domain Case

By Beacon Staff

HELENA – Landowners asked the Montana Supreme Court Monday to continue their consideration of a challenge of a utility’s ability to use eminent domain, despite a new state law that bolsters that power.

The attorney for the developers of the Montana Alberta Tie Limited utility line had asked the high court to remand the case back to a lower court for a ruling that complies with the new law and allows the developers to condemn private property.

Attorney for the electrical utility James Goetz made that motion of summary reversal two weeks ago. Goetz argued the new law “now makes MATL’s condemnation authority inarguable.”

The lawyer representing the landowners, Hertha Lund, said such a motion is unprecedented, beyond the scope of the court and asked the court to continue hearing the case.

In Lund’s written response, she said Goetz’s motion is “a procedure neither authorized by this Court’s rules nor applied in this Court’s cases.”

She suggested the court either dismiss Goetz’s motion, halt the proceedings until challenges against the new law are resolved or allow the lower court to reconsider the case freely after challenges to the new law are resolved.

Lund filed a separate lawsuit Friday that challenges the constitutionality of the new eminent domain law. The lawsuit, filed in district court covering Teton and Pondera counties, claims the law violates the constitutional rights of due process, property protection and equal protection.

Property rights advocate groups have also started a petition to suspend the new eminent domain law and put the issue to the voters in 2012.

The Supreme Court case is a challenge to MATL, a 214-mile wind-power utility line planned through northern Montana, filed by Cut Bank landowners Larry Salois and his mother, Shirley.

The Salois are contesting the ability of the private company to use eminent domain, saying the path of the line would damage culturally sensitive American Indian sites. The company says they will be able to build around any artifacts.

After being unable to reach an agreement with the Salois on where the electrical line would go through their property, the company attempted to force an agreement by exercising eminent domain.

The Salois contested the action and won an initial victory when a district court ruled the utility didn’t have the right to use that power, normally reserved for governments. The business appealed the ruling and the Supreme Court case was being prepared when the new law came into effect at the beginning of the month.

Legislators passed the new law and Gov. Brian Schweitzer allowed it to go into effect to give utilities and transmission companies the power to condemn private property in order to jump start delayed power projects across the state.

Business advocates say without the measure thousands of jobs could be lost due to projects halted by holdout landowners.

Property advocates say bolstering eminent domain powers is a violation of property right and forces them to settle on unfavorable terms.

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