Archive for December 16th, 2010

by jhwygirl

Odd, no?

Great Falls Tribune reported yesterday on a ruling by District Judge Laurie McKinnon which found that private corporations do not have the power of eminent domain.

You’d think freedom-loving pro-property right’s Montanans would be out banging pots and clanging lids but instead? Thud.

You’d think the Chamber of Commerce and every other Ayn Rand freak would be out decrying the ruling, but instead? Crickets.

The Montana-Alberta Tie Line – this thing is probably in its 6th year of running at high gear – was told that they didn’t have the right to condemn Shirley Salois’ property:

In July, a Montana subsidiary of Tonbridge Power Inc. of Toronto filed a complaint to condemn their land in Glacier County District Court after Salois argued the proposed route should be adjusted across his property farther from tepee rings and a wetland.

Lund argued Tonbridge could not exercise the right of eminent domain because it is not an agent of the state that has been given express legislative authority to acquire private property.

So this is a pretty big deal. What’s Tonbridge to do? Do they appeal? Do they open the book for a state-wide ruling that’ll become precedent for every other jurisdiction in the state? Or do they move these lines?

This ruling can have major impact Northwestern Energy’s Mountain State Intertie (MSTI) too. A 500kv line being built across Montana and Idaho in an effort to move electricity to California and Colorado, it has run into plenty of trouble. Proponents tout that it is for wind energy, but the reality is that virtually all of it is to move coal-produced electricity. There has been considerable public outcry against this project too – with Jefferson County officials going so far as suing DEQ, successfully, to halt the process.

MSTI will be – or perhaps they won’t be – relying on condemnation powers to construct this line. So ouch on those plans.

Who else? Well, that Otter Creek coal was relying on a railroad through, in part, some candy-heir ranch owner’s land out east. You can bet they were going to try and pull our Montana’s eminent domain laws there too.

A while back I called the PSC – I think I might have mentioned this in some comments at Left in the West – to ask some questions about both of these lines. Mainly, what I wanted to understand was why could they condemn private property when the lines weren’t for public use – they weren’t regulated by the PSC, and they weren’t available to any public project that might want to access it.

In other words – not only were they going to condemn property, they were causing an increase cost for infrastructure for power because of the monopoly-like nature of their use. Brad Molner explained to me that the lines weren’t common carriers and they fell under some federal interstate clause that didn’t allow them to be regulated by the PSC. I lamented to him the inability of the state to regulate them because of our lack of infrastructure which was inhibiting wind energy development.

It’s an interesting mix of situations here – does Tonbridge appeal? Can they apply for common-carrier status? Does this become some sort of federal-state showdown? Might this be a turning point for energy development in Montana?

I’ll be watching this case closely, as I’ve often pondered how Montana’s eminent domain laws can be used by private entities when – despite they provide services to anyone who purchases them – are private for-profit not government entities. Remember the outcry about the Kelo v. City of New London Supreme Court ruling?

I mean – look at the list of things that private entities could – and have – condemn private property for – it’s crazy, really, and all listed under Public Uses enumerated.

Parking lots….urban renewal projects…roads..for the benefit of..the inhabitants of a county, city or town…

Interesting stuff, no?

It’ll be interesting to see how the new legislature being sworn in January 3rd is going to want to – perhaps – fix what I’m sure a whole bunch of them are going to try and twist as some egregious miscarriage of justice to the public good.

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